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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Brian Walker

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London