Ten years after Cory: has the human rights case been lost?

The Committee for the Administration of Justice (CAJ) have just published a long delayed report on a conference held  two years ago  to review the state of accountability for covert policing for the controversial  UK Investigatory Powers Bill,   against the background of  what went on during the Troubles. They began by noting that the UK national security and crime institutions MI5 the National Crime Agency operate in the province without specific accountability to the local institutions. This is hardly news.   The interesting fact however is that after local protests and assurances given, the situation has been accepted.

As for how the state operated during the Troubles, it is now orthodox to believe that the use of informants was crucial in bringing the IRA campaign in particular to an end, but at high human and ethical cost. However compromised was the rule of law and common humanity on many occasions, this too has been accepted as big a factor in ending the Troubles as the peace process.  It’s remarkable that the exposure of the extent of collusion with loyalist paramilitaries did not destabilise the process. Unionists might bear that in mind when they complain about OTRs and other concession to republicans.

Perhaps truly open recognition of uncomfortable realities is a stage a future generation will wish to go through –   including recognising  common victimhood and  calling time on the blame game, if only out of sheer exhaustion.  Today however seemingly intractable, dealing with the Past is not a political deal breaker.

So is the rehearsal of human rights arguments a case of opening the stable  door to find the horses have bolted?  Does the current lack of local accountability for MI5 and the National Crime Agency matter?  Human rights lawyers and activists would say yes. Their  campaign continues. The analysis remains relevant in the current examination of  “ending paramilitarism” today. It is also essential for the First Minster to lift her apparent block on funding key inquests which are now under the oversight of the Lord Chief Justice. The delay be OK is she needs assurances over the order of cost; but it is not acceptable for her to impede legal process if she doesn’t like the cases.

 CAJ REPORT

From the synposis

All accept that covert or secret policing has a significant part to play in combating organised crime and terrorism… The reality is that crimes committed by police officers undermine the rule of law much more than crimes committed by criminals, terrorists or whoever..

Significant reforms have taken place within the PSNI, including following the Police Ombudsman’s Operation Ballast investigation, the introduction of a process whereby the involvement of an informant in a crime over and above membership of a proscribed organisation requires an authorisation from an Assistant Chief Constable.

However, from 2007 the primacy for covert ‘national security’ policing in Northern Ireland was switched to MI5 which sits entirely outside the post-Patten policing accountability bodies, and against whom complaints can only be directed to the Investigatory Powers Tribunal, a court which meets and makes judgements in secret, and never appears to have upheld a single complaint against the agency.

A 2012 CAJ report ‘The Policing You Don’t See’ scrutinised this issue and uncovered that key accountability commitments relating to the MI5 arrangement had not even been implemented. This included the publication of high level Memorandums of Understanding (MoU) on how the agency would operate. Documents CAJ did obtain included however a MoU on national security matters and the Policing Board. This document, rather than being a safeguard, contains a list of restrictions on the Policing Board’s role including listing the types of information the Chief Constable should not tell the Policing Board, even in confidential sessions. The Policing Board, in addition to rebuking this MoU which they had never formally entered into and regarded as having no legal standing, responded to the CAJ report by taking forward further work examining the accountability framework for covert policing.

Northern Ireland does have one of the most powerful independent Police complaints bodies in the world, yet at the outset of 2014 questions were raised about the remit of the organisation to examine covert policing issues, and in particular complaints of informant recruitment. Notwithstanding some restrictions on the Office introduced by RIPA, the Ombudsman has stated that there is no area of police misconduct that it could not examine. There will of course be limitations when covert operations involve MI5, as the Ombudsman has no standing to investigate the agency.

In 2013 the UK ‘National Crime Agency’ (dubbed the British FBI) was also established. Following concerns from CAJ and others that the NCA was to operate outside the post-Patten accountability arrangements, and instead be answerable to the Home Secretary, the Northern Ireland Executive did not agree to let the 5 NCA operate in Northern Ireland with full police powers. Ministers confirmed however the NCA could still operate in Northern Ireland using its covert policing powers under RIPA, and the NCA become operational here without any accountability to either the Policing Board or the Ombudsman.

Deadly intelligence and the rule of law Paul O’Connor, Director Pat Finucane Centre .

…the de Silva review ( on collusion over the murder of Pat Finuance)  did reveal damning new evidence. According to de Silva between January 87 and December 89 there were 270 separate incidents of security force leaks to loyalist paramilitaries. According to the MI5, 85% of the intelligence material in the hands of the UDA came from security force sources. 41% of the leaks – the source was unknown but came from within the security forces and by far the largest identifiable group of leaks came from within the UDR, 27%,

de Silva concluded that a series of positive actions by employees of the state actively facilitated Pat Finucane’s murder and that in the aftermath there was a relentless attempt to defeat the ends of justice.

One glaring omission from his report… is the omission of the Walker report. By the early 1980’s Sir Patrick Walker, later the director of M15, drew up guidelines on intelligence lead policing, decisions on the recruitment of informers, running of agents and possible prosecution of agents. This Walker report essentially subverted CID – any idea of normal policing and the rule of law, and created a powerful force within a force, with the RUC special branch reporting directly to the security service M15.

 

Dr Michael Maguire Police Ombudsman for Northern Ireland

There is no element of police criminality or misconduct which is outside the remit of the Police Ombudsman’s Office. That includes Covert Policing. This view is the basis of all our investigations and much of the discussions we have within the organisation. The ability of my Office to deal with issues of covert policing is often a litmus test for both police accountability and the effectiveness in holding the police to account.”

Ryan Feeney Independent Member, Northern Ireland Policing Board.

Over the last number of years, I’m coming into my 4th year on the board, I’ve been on it three years now, we’ve had a strained relationship with the police in terms of information exchange. I don’t want to comment on it now but I know the Police Ombudsman’s office was having the same and I hope now we are entering a new era of accountability and transparency within the PSNI because as the people who represent the community and as the people who are there to try and build community confidence we should be the first port of call.

Now I come from a very strong Republican Nationalist background. It would have been unheard of for someone like me to have been on the Policing Board before the devolution of policing in 2007 but I fundamentally believe that the model we have at the moment can work if we have a relationship with the Police built on trust. Michael alluded to it as well when he said the importance of getting relations right and information exchanged. We as the Policing Board have powers to actually compel the Chief Constable to provide us with information. We have not yet used that power and hopefully will not have to in the new leadership but we’ve come fairly close over the last number of years. There should never be a situation, outside of the current security umbrella, where the police would not provide information to try and ensure the community have a board that are holding the police to account.

 

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  • chrisjones2

    Why is the emphasis always on the control of / alleged collusion with Loyalists? What about the Republican informers? As PIRA was always the biggest terrorists group one must assume that pro rata there were a lot more of them but oddly few people are lobbying for more disclosure there

  • Thomas Barber

    Chris if you have evidence that there were more state agents who were armed by the state and allowed to murder at will within the PIRA than there was in the UDA or UVF then dont be shy let us all see it otherwise its just an opinion based on nothing but sour grapes. The reality is there was state agents in all paramilitary groups but the fact that state forces and loyalists were on the same side targetting the same people kind of tips the balance in favour of more loyalists state agents than republcians coupled with the fact that there is more than enough evidence already in the public domain that proves that point.

    “it is now orthodox to believe that the use of informants was crucial in bringing the IRA campaign in particular to an end”

    Brian obviously your talking about Unionists and the British government, who else would believe or defend the idea that those thousands of state agents murdering hundreds upon hundreds upon hundreds of innocent people would actually bring the conflict to an end rather than prolong it.

  • Brian

    This part of the CAJ ‘synopsis’ is hugely outdated and potentially misleading…

    In 2013 the UK ‘National Crime Agency’ (dubbed the British FBI) was also established. Following concerns from CAJ and others that the NCA was to operate outside the post-Patten accountability arrangements, and instead be answerable to the Home Secretary, the Northern Ireland Executive did not agree to let the 5 NCA operate in Northern Ireland with full police powers. Ministers confirmed however the NCA could still operate in Northern Ireland using its covert policing powers under RIPA, and the NCA become operational here without any accountability to either the Policing Board or the Ombudsman. [added emphasis]

    Rather than “covert policing powers”, do they actually mean covert surveillance powers? Because the NCA did not become fully operational, with actual policing powers, until 2015.

    In fact, in 2015, although the Executive was blocked by Sinn Féin ministers from bringing forward the necessary Legislative Consent Motion, a Private Member’s Motion ‘consenting’ to the full operation of NCA in NI was debated by the Assembly and passed by the Assembly – despite the NI Assembly Speaker at the time, Sinn Féin’s Mitchel McLaughlin, ruling that it was not a proper Legislative Consent Motion.

    By Order in Council in March 2015 the NCA became fully operational in Northern Ireland – with increased scrutiny, if not increased accountability.

    Btw, this could hardly be otherwise since, unlike the Chief Constable of the PSNI, the NI Policing Board do not employ the head of the NCA.

    However, as I pointed out at the time – the “Assembly’s ‘consent’ for National Crime Agency Order [was] a challenge to the Speaker

    The Speaker ducked that challenge – diminishing the Office in the process. That’s why the NCA is now fully operational here.

    Btw, again, I may return to this CAJ report in a subsequent post.

  • MainlandUlsterman

    Unfortunately the term “human rights” has long become a bit meaningless when used in the Northern Ireland context as it is only really seems to refer to the rights of people complaining of state action. In our Troubles, most human rights abuses were carried out by paramilitary groups. I think that’s been the stumbling block with looking though that lens.

  • Thomas Barber

    In a normal democracy you would be right MU but in this part of the world when the state is actively involved with those same paramilitaries in human rights abuses then the main focus should be directed at those who are supposed to be guardians of our human rights. Theres not a day goes by nowadays without more revellations being brought into the public domain about how those same supposedly gaurdians of our human rights were the very same people who protected and allowed human rights abuses to take place causing hundreds if not thousands of victims. If there was a pro active effort by the PSNI or the British government to bring to justice those members of the security forces who directed, protected, armed and supplied the intelligence to the terrorists who carried out hundreds upon hundreds of murders or allowed their state agents to murder hundreds upon hundreds of innocent people then who could argue with the PSNI actively pursuing intelligence from the likes of the Boston tapes and bringing to justice those who deserve to be brought to justice but unfortunately they are either ignoring the immoral and criminal actions of former and current police officers or they are being politically directed to focus their attentions elsewhere in an effort to divert attention from their unwillingness to uphold the law in regards to actions by members of the state that led directly to the murders of all those hundreds upon hundreds of innocent people.

    Either the law applies to everyone or the law applies to no-one, if the crimes of the state are to be brushed under the carpet and their victims ignored then all crimes related to the past conflict should also be brushed under the carpet.

  • Granni Trixie

    I think you would be interested in a book I have been reading called “Human Rights:war by other means” (by an American? Anthropologist, Jennifer Curtis). She examines rights discourse in Ni and traces its appropriation by certain groupings.

  • MainlandUlsterman

    We could have this argument till the cows come home but just to flag, it’s taking considerable poetic licence to say “the state is actively involved with those same paramilitaries in human rights abuses”. Actively involved in the sense of trying to bring the paramilitaries to a stop, yes – which is what happened. Da Silva, 5.20:
    “Any attempt to crudely describe loyalist terrorists as simply ‘State-sponsored forces’ is, in my view, untenable and fundamentally at odds with a substantial body of contemporary evidence and the historical context of the relationship between loyalists and the security forces during this period.”

    And remember the state was as keen, or indeed keener, to infiltrate Republican paramilitaries as it was Loyalists and had considerable success in extremely difficult circumstances in turning some Republican paramilitaries, helping undermine those organisations’ on going campaigns of physical abuse against Irish and British people. Infiltration and agent-running is how you ultimately beat the terrorists and bring the whole abuse machine under pressure to a point where it eventually stops. That this work wasn’t well enough supervised for a number of years was a major failure though. The lessons seem to have been learned, indeed were learned a couple of decades ago. But yes, the law applies to all and that includes the laws under which state’s extremely brave anti-terrorist teams operate. They put in a massive shift in Northern Ireland for decades, let’s not forget their huge contribution to the defeat, sorry “arrival at stalemate” (ahem), of the paramilitaries.

  • Granni Trixie

    Why should it be either/or? Follow the evidence where it exists, I say.

    For this reason I was quite shocked at the FM comments in recent weeks concerning why she did not support the request of Sir Declan Morgan For money to clear up legacy inquests (was it 50 of them)?).

    Unfortunately I do not have her exact words but I think the sense was that she objected as the outcome would be ‘too one sided’ and sideline “innocent victims”.

    Ofcourse she was making wrong assumptions as to the nature of the cases but my point is that the families of whoever is killed in disputed circumstances deserves at very least an inquest.

  • Reader

    Thomas Barber: Brian obviously your talking about Unionists and the British government, who else would believe or defend the idea that those thousands of state agents murdering hundreds upon hundreds upon hundreds of innocent people would actually bring the conflict to an end rather than prolong it.
    In the alternative history where the security forces didn’t infiltrate the various terrorist groups and imprison thousands of them; then the terrorists killed people twice as fast and are still killing people now. That’s a dissident fantasy, but not appealing to the rest of us.

  • Thomas Barber

    Whats your point Reader ?

    I do note however you are another who simply ignores and dismisses the actions of RUC officers and British intelligence officers who we can say collabarated with terrorists in the murders of hundreds upon hundreds upon hundreds of innocent victims and not one single member of the RUC or British intelligence has been brought before the courts to answer for their crimes.

    Like I said only a unionist would believe that allowing the above to happen actually helped bring the past conflict to an end therefore the ends justified the means.

  • Jarl Ulfreksfjordr

    Do give us the outcomes of your ‘alternative history’ where the police and army stand idly by and do not try to contain and confront terrorism.

    I suppose we can take it as read that the number of murders would be reduced for a start. Nationalist and loyalist terrorists wouldn’t have targeted soldiers and police; why would they if the police and military were doing nothing to combat them?

    Perhaps in your scenario there may have been no deaths at all? If as you believe the State was responsible for “thousands” of deaths, who else would have committed the killings?

    Also do tell how the “conflict” would have ended?

  • Thomas Barber

    But the police and army didn’t stand idly by, they engaged in a joint enterprise with the terrorists to murder hundreds upon hundreds upon hundreds of innocent people and that just going from the information we are told so far perhaps when the whole truth emerges those numbers could be even higher.

    Your grasping at straws attempting to defend the murders of hundreds of innocent people with an alternative history that is a feeble attempt at diversion and will never excuse the immoral and criminal actions of members of the RUC and British intelligence.

  • Jarl Ulfreksfjordr

    I do not “defend” murder. Anyone complicit in murder should face the full rigour of the law.

    I was attempting to tease you into turning down your unsuccessful hyperbole and for a moment consider the challenges faced by the State in trying deal with a terrorist campaign that, shamefully in my opinion, found a degree of succour within the communities the terrorists came from.

    The RUC of the late Sixties and early Seventies, and indeed also the Army despite its colonial experiences, was ill-equipped to deal with the violence Northern Ireland society faced at the hands of loyalist and nationalist terrorists. The police had to learn on the job; and that ‘job’ was in a period of widespread violence with daily murders and bombings. Without doubt sins of omission and commission can be laid at the feet of soldiers and police. However with, for example, the heart being blown out of towns across NI, with a resultant loss of life, they had to do something. Even though mistakes, and some actions born of malice, did happen the vast majority of soldiers, police and ‘spooks’ did their work both lawfully and courageously.

    Over time the State’s agencies did develop successfully to a point where the terrorists were largely contained and a situation was created in which politics, imperfect as they may be, could take the lead (notwithstanding the increasing threat posed by contemporary nationalist terrorists: the so-called ‘dissidents’).

    Of course I understand that some people start judging the State from the point that whatever it did was wrong. The propaganda that is now deployed by some is that somehow the State was involved in widespread planned violence (to what end?) and was responsible for “hundreds and hundreds if not thousands of murders” is merely the extreme end of that particular propaganda spectrum. And all this despite no evidence to substantiate such a wild claim. Indeed, as has already been pointed out to you on this very thread, official inquiries have rubished the hypothesis you seek to promote.

    Not that I expect any of this will change your mindset. You appear to be fixated with pointing the finger at the State (and interestingly only one side of the terrorist sandwich- the loyalists). I can only speculate as to why that should be. I doubt it has anything whatsoever to do with the righteous anger you hope people may read into your comments.

  • Thomas Barber

    “The propaganda that is now deployed by some is that somehow the State was involved in widespread planned violence (to what end?) and was responsible for “hundreds and hundreds if not thousands of murders” is merely the extreme end of that particular propaganda spectrum. And all
    this despite no evidence to substantiate such a wild claim. Indeed, as has already been pointed out to you on this very thread, official inquiries have rubished the hypothesis you seek to promote”

    Its your good self that is talking rubbish Jarl the facts speak for themselves rather than your imagined alternative history. Its only propaganda to unionists and people like yourself who refuse to believe the truth.

    http://www.belfasttelegraph.co.uk/news/northern-ireland/britains-secret-terror-deals-collusion-claims-to-be-raised-at-stormont-31264648.html

    Former Police Ombudsman Dame Nuala O’Loan claimed that “hundreds” of deaths happened as a result of collusion. She claimed some informants were “serial killers”.

    PS Dont forget the further reading too in the same article there lots of uncomfortable truths for you to brush under the carpet.

  • Jarl Ulfreksfjordr

    This may prove to be of use to you, although I strongly suspect it won’t.

    Definition of ‘claim’: ‘state or assert that something is the case, typically without providing evidence or proof’.

    It is of course quite common for a wide variety of folks to make various claims about a multitude of things. Such is the way of things. Some call the process ‘having an agenda’.

    However it may be of note that should someone who had a responsibility for, let’s say as an example the investigation of alleged police misconduct, make a “claim” about a matter that centrally touches on the very core of that responsibility, and yet provide neither evidence to support that claim, and indeed any evidence that action was taken to secure an appropriate outcome to the issues raised by the claim made, you’ve got to consider the whole exercise could be mere grandstanding.

    Not that you’ll take a blind bit of notice of the absence of evidence, you know that thing required in courts to secure convictions. Stay happy by clinging to those ‘claims’. I hope things work out for you, though I very much doubt they will.

  • Thomas Barber

    Jasper your clutching at straws, are you suggesting the former police ombudsman Naula O Loan who had access to information you dont have access to is grandstanding, telling lies or overestimating the figures just to annoy people like yourself.

    No doubt you dismiss all those claims about Gerry Adams being in the IRA as being without evidence and we can take those claims about him by unionists and whoever as simply grandstanding.

    You stay classy now Jarl while you defend the murders of hundreds upon hundreds upon hundreds of innocent people.

  • Jarl Ulfreksfjordr

    Timmy you’re clutching at straws, are you suggesting the former police ombudsman Naula O’Loan who had access to information you don’t have access to failed to do anything with it?

    Perhaps I missed those hundreds and hundreds of police officers processing through the courts to face charges of multiple murder on Naula’s watch?