A tribunal in England has confirmed that British military intelligence has the legal power to direct unlimited criminal offences by its agents, including torture, bombings and political assassinations.
The Investigatory Powers Tribunal heard that while the once-secret policy was now public knowledge, there are no known limits of the criminal conduct allowed.
A coalition of human rights groups had argued that the policy, which is now referred to as “the third direction”, effectively gives MI5 agents blanket immunity for any criminal activity.
By a majority of three to two, the Investigatory Powers Tribunal ruled the policy is lawful.
Privacy International, Reprieve, the Committee on the Administration of Justice and the Pat Finucane Centre had asked the tribunal to grant an injunction “restraining further unlawful conduct”.
Ben Jaffey, QC, for the groups, had said that MI5 was permitted under the policy to “authorise” criminal conduct by its paid and directed agents, known as covert human intelligence sources (CHIS).
Mr Jaffey pointed out that in the past “authorisation of agent participation in criminality” had led to grave breaches of fundamental rights.
He pointed to the case known as ‘Stakeknife’, a British agent in the IRA who carried out a series of killings on behalf of his handlers, as well as the MI5-directed assassination of Belfast lawyer Pat Finucane.
The tribunal, led by its president Justice Singh, heard some evidence secretly, in the absence of lawyers and the media.
The British government argued it would be “impossible” for MI5 to operate effectively without the policy and that it was vital for British “national security”.
“They (the agents) are indispensable to the work of the security service, and thus to its ability to protect the public from threats,” claimed barrister James Eadie argued.
Lawyers for the human rights organisations took heart from the fact that two members of the tribunal ruled that the policy is unlawful. The Derry-based Pat Finucane Centre (PFC) said the fact that two justices had dissented was “deeply significant.”
“The overall co-ordination of all security and intelligence matters [in Northern Ireland] lay with MI5 and, as we have seen in the case of [British agent] Brian Nelson and in the murder of Pat Finucane, state agents were involved in murder in this jurisdiction,” a spokesman said.
“This is the first time there has ever been dissenting opinions in a judgement from the IPT.”
The PFC and their co-claimants - Reprieve, Privacy International and the Committee on the Administration of Justice (CAJ) - have said they will appeal the tribunal’s decision.
The deputy director of CAJ, Daniel Holder, said the “practice of paramilitary informant involvement in serious crime was a pattern of human rights violations that prolonged and exacerbated the Northern Ireland conflict.
“Archival documents show that the unlawful nature of informant conduct here was known at the time and it appears policy since has been even more formalised,” he said. “This close ruling is far from the end of the matter.”
Saoradh has said the tribunal had highlighted MI5’s ongoing criminality within the Six Counties and in Britain itself.
“We have always made it known that British policy on Irish soil has always been one of self-serving criminality and the murder of Irish people,” they said. “The history of Britain here is common knowledge with no policy change.”
The said the political parties needed to challenge MI5 activity in the north of Ireland and the integration of its operations with the PSNI following the 2006 St Andrews Agreement. They also questioned whether criminal acts of PSNI members are covered by the policy.
They added: “Saoradh will not be found wanting when it comes to exposing and highlighting the ongoing injustices of Crown Force personnel while others who are complacent and highly involved in thuggery and criminality themselves, bury their heads in the sand.”