In a landmark ruling last week, a panel of five senior British judges ruled that a secret government policy of granting immunity to its state security service was “legal”.
Below is an interview with one of the human rights groups which challenged the murky policy demanding that it be banned.
First though, some background to the issue.
British government policy holds implicitly that agents or informants operating for the state’s security service, MI5, are permitted to commit crimes without fear of prosecution if those crimes are committed in the line of duty to protect national security.
This is tantamount to the British state granting its agents and proxies a “license to kill”.
The judges in the panel of the so-called Investigatory Powers Tribunal (IPT) have formally recognized this hitherto secret government policy as “legal”. The panel voted by 3 to 2 in favor. The two dissenting judges expressed deep concern that the ruling was “opening the door to future abuses” of power by British state agents.
MI5 is the branch of state intelligence that deals specifically with internal security. The other branch, MI6, deals with overseas activities. The disturbing implication is that MI5 can act with impunity, including acts of murder, against British citizens in the name of national security. The powers granted to it are secret and beyond public scrutiny in the courts. That means Britain’s secret services are now officially untouchable and above the law. This is a description fitting for a police state, not a supposed democracy which proclaims to be under the rule of law.
Four British-Irish human rights groups challenged the policy of immunity but they were over-ruled last week by the five-judge panel. These groups are to further appeal the decision in the courts. One of them, the Committee on the Administration of Justice (CAJ), based in Belfast, has considerable expertise in investigating the abuse of state power during the armed conflict in Northern Ireland (1969-1998). CAJ has documented the extensive involvement of British military intelligence in waging a dirty war in Northern Ireland where its agents colluded with and directed paramilitary agents and informants to carry out assassinations. Hundreds of such extra-judicial killings remain “unsolved” and represent a painful legacy for citizens across Northern Ireland.
One of the most notorious killings was that of Belfast human rights lawyer Pat Finucane (39) in 1989. British agents smashed into his home while he was having dinner with his wife and three young children. The attackers shot him in the head 12 times as he lay prone on the floor in front of his family. The British government has previously acknowledged “shocking collusion” by its agents in Finucane’s murder. But the British authorities have pointedly refused to hold a full public inquiry, thereby blocking any prosecution.
Thirty years after the murder of Pat Finucane and hundreds of other Irish citizens by British counterinsurgency operations, Britain is now formally granting the same license to kill citizens anywhere in the United Kingdom – under the pretext of national security. The development has grave implications for human rights in Britain. It also casts a sinister cloud over what kind of Britain the new Conservative government under Boris Johnson is creating post-Brexit.
Strategic Culture Foundation conducted the following interview with Daniel Holder, the deputy director of the Committee on the Administration of Justice (CAJ), based in Belfast.
Question: Is CAJ concerned that the Investigatory Powers Tribunal ruling last week will lead to serious human rights abuses by British security services in the future?
Daniel Holder: We are very concerned that this ruling for now permits MI5 to continue to authorize informant or agent involvement in serious crime. This could include crimes that constitute human rights violations. There were such experiences during the Northern Ireland conflict of informant-based paramilitary collusion, with agents of the state involved in acts as serious as murder and torture. Far from the so-called “intelligence war” helping bring the conflict to an end we consider that such practices by covert units of the security forces as having prolonged and exacerbated the conflict.
Question: On Brexit impact, will leaving the EU and its human rights standards add to concerns of abuse of power by the British state?
Daniel Holder: Although the European Convention on Human Rights (ECHR) is part of the Council of Europe system and not the EU, those advocating for Brexit often confuse the two and hostility to the EU also manifests itself in hostility to the ECHR and its court in Strasbourg. Being an EU member state, however, does mean ECHR membership is obligatory, and that will go with Brexit. Although the ECHR being incorporated into Northern Ireland law is also a key part of the 1998 peace deal known as the Good Friday Agreement it is deeply concerning that the new British government is already advocating breaching this commitment by stating it will change the domestic ECHR law (the Human Rights Act) so it does not apply to acts before the year 2000. They are quite open that the reason for doing this is to impede investigations into the security forces during the Northern Ireland conflict – and top of the list as to what the UK does not want a light shined on is precisely the issue of the crimes of agents of the state within paramilitary groups, practices often referred to as “collusion”.
Question: Are British government claims justified that undercover work by security services and their agents may require freedom for agents to participate in unlawful activities in order to protect national security?
Daniel Holder: All police and security services the world over use informants. They are a vital policing tool, but they have to be used lawfully, and the question always is: where do you draw the line as to what they are allowed to do? On occasions where absolutely necessary this may involve informants being involved in crimes like conspiracies with a view to thwarting them; but the bottom line is that informants can never lawfully be “authorized” to be involved in serious crimes that constitute human rights violations, such as kidnap, killings and false imprisonment, nor can they act as agent provocateurs. All of that is illegal.
Question: The narrow majority in the five-judge high court granting immunity to MI5 from prosecution for crimes suggests there is concern among state judges that the existing policy is dubious and treacherous. Do you perceive deep misgivings among the authorities?
Daniel Holder: Yes, but not just now, going back some of the archival documents and investigations that have taken place into the Northern Ireland conflict have revealed significant misgivings at that time, about just such a policy. Take the government-approved De Silva review published in 2012 into the murder of human rights lawyer Pat Finucane, where “shocking” levels of collusion were admitted. This report conceded that that officers were being asked to do things that could not be done lawfully, which is another way of saying the policy and practice was unlawful. We now have a secret policy, the limits of which are unknown, on the basis of a power that does not exist in law, that tries to continue to place agents of the state above the law. The concern is that the errors of our past could be repeated if the same circumstances arise again, here or elsewhere.
Question: The British judges’ ruling last week seems contradictory. On one hand the ruling claims MI5 agents are not immune from prosecution, but on the other hand it says they can act unlawfully if it is done in the public interest?
Daniel Holder: The system and policy are contradictory. The policy says that MI5 informants are in theory not immune from prosecution, but MI5 will know about their crimes – and indeed authorize them – but conceal this from police and prosecutors, despite legal duties that apply to everyone in Northern Ireland and the United Kingdom to promptly inform the police when you are aware someone is committing a crime. Again, this is the security service placing itself above the law.
Question: Is this the kind of policy that leads to rampant lawlessness seen elsewhere, for example in Brazil and The Philippines where police officers and state agents are killing thousands of people extrajudicially with impunity? Northern Ireland’s past conflict of rampant British state collusion in killings is surely a warning too?
Daniel Holder: The practices by covert elements of the security forces of tolerating, facilitating and even directing informants in paramilitary groups involvement in serious crime, including killings, and assisting their evasion from justice, in our view was one of the most serious patterns of human rights violations that prolonged and exacerbated the Northern Ireland conflict and has left a deeply poisoned legacy that we are still struggling to deal with today. There have been significant reforms to the Police Service in Northern Ireland since the peace process to prevent recurrence, but the UK security and intelligence agencies also need to bring their practices within the law, otherwise somewhere, history could repeat itself.