Covert policing and the accountability gap: Five years on from the transfer of ‘national security’ primacy to MI5
The participants believe it essential that policing structures and arrangements are such that the police service is professional, effective and efficient, 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. (The Belfast/Good Friday Agreement)
The programme of police reform ushered in by the peace settlement placed great emphasis on accountability and transparency. As this report details, the Patten Report explicitly recommended that these principles should apply to covert policing. Despite this the British Government, in a paper appended to the 2006 St Andrews Agreement, set out “future national security arrangements in Northern Ireland” which shifted the most sensitive areas of covert policing in the opposite direction, effectively ring fencing them outside the post-Patten accountability arrangements.
The policy formalised the previously largely undeclared role of the Security Service (MI5) in covert policing in Northern Ireland and actually transferred primacy to MI5 over ‘national security’ policing, with the PSNI playing a seemingly subordinate role. The transparency in covert policing policy, codes of practice, legal and ethical standards envisaged by Patten and provided for in international standards sit uncomfortably with an agency which has a culture of operating entirely in secret. Not only is the Security Service not answerable to the accountability bodies set up to scrutinise the PSNI, but the agency is also exempt from freedom of information and even apparently fair employment monitoring requirements. MI5’s own oversight arrangements, which include a Tribunal which has never upheld a single complaint against the agency, have been heavily criticised by human rights groups.
October 2012 marks five years since the formal transfer of primacy for ‘national security’ policing from the PSNI to MI5 on the 10 October 2007. Ten years have elapsed since the post-Patten creation of the PSNI, almost fifteen years since the Belfast/Good Friday Agreement and over two years since the 2010 transfer of most – but clearly not all – policing and justice powers to the devolved institutions. It is an opportune moment to take stock of these developments.
CAJ has fought for reform of and accountability for all aspects of policing since our foundation. The 1998 Belfast/Good Friday Agreement and the resultant Independent Commission on Policing for Northern Ireland (the Patten Commission) brought about extensive reforms designed to enhance the accountability of policing. These included the reform of the Royal Ulster Constabulary (RUC) into the Police Service of Northern Ireland (PSNI), an independent police complaints mechanism (the Office of the Police Ombudsman for Northern Ireland), the establishment of an independent policing authority (the Northern Ireland Policing Board) composed of 19 political and independent members, as well as the establishment of local council based District Policing Partnerships to enhance local oversight. More recently in 2010 the devolution of most policing and justice powers took place to the power-sharing Executive and Assembly in Belfast. Although CAJ still has concerns about limitations and retrogression in this framework it is undeniable that there has been significant and substantial change for the better in the oversight of policing since the Agreement.
The question this report explores is the extent to which a gap has emerged in the accountability framework in relation to the most controversial, risk-laden area of policing: covert policing – ‘the policing you don’t see.’ In relation to defining covert policing the Patten Report indicates it includes: “interception, surveillance, informants and undercover operations.” The Regulation of Investigatory Powers Act 2000 (RIPA) covers matters including the interception of communications, the acquisition and disclosure of data relating to communications, the carrying out of surveillance, and the use of agents and informants. In the past and current context of Northern Ireland, a great deal of covert policing is focused on what St Andrews described as ‘national security’ policing. This is the area of policing and security policy which gave rise to many of the most serious human rights concerns during the conflict relating to ‘collusion’, the State otherwise acting outside of the rule of law and impunity for unlawful State actions. This, in particular, included the controversial role of agents and informants. In this context policy, oversight and accountability arrangements for covert policing have profound implications for the administration of justice and human rights. Such reflections are particularly judicious given pending legislation to establish the ‘National Crime Agency’ and introduce it into Northern Ireland, a move that will further widen the emerging policing accountability gap.
This report contends that in contradiction to the Patten vision of a police service unfettered by direct political control and able to ensure accountability, since the St Andrews Agreement what has emerged is a parallel police force answerable to ‘direct rule’ Ministers and concentrated on perhaps the most sensitive area of policing. The transfer of policing and justice powers has made it even more obvious that a raft of ‘national security’ powers are in fact retained and exercised by the Northern Ireland Office (NIO). The St Andrews Agreement did promise additional ‘safeguards’ in relation to the MI5 transfer. However, as this report will show, at best it is not possible to tell if such safeguards are actually effective in practice. Even worse it will document how other promised safeguards have already been reneged on and others actually appear to have been used as a mechanism to further rollback accountability measures.
The first chapter of this report will draw on international standards and the recommendations of Patten to elaborate a human rights framework for covert policing. By this we mean the principles, methods of operation, and accountability mechanisms which can ensure that covert policing is human rights compliant.
The second chapter examines the evidence of past human rights abuses in covert policing in Northern Ireland. This does not pretend to be a comprehensive review of the subject. The chapter refers almost exclusively to official independent investigations by Stevens, the Police Ombudsman, Justice Cory and public inquiries. These investigations demonstrate both the need for a radical break with the past and the continuing importance of applying a human rights framework to covert policing for the present and future. The focus of these reports, and hence of chapter two and much of what follows in this report, is the element of covert policing which involves the running of what are called ‘agents’, ‘informers,’ ‘informants’ or, in some official documents ‘CHIS’ (Covert Human Intelligence Sources). These terms will be used interchangeably throughout the report.
The third chapter examines the specific role of MI5 during the conflict, as far as it is known from official reports and other sources, and what little we know of its operations since the St Andrews Agreement. This includes the impact of MI5 on the ‘counter-insurgency’ model of policing adopted in Northern Ireland, particularly following the 1981 Walker report, as well as the Security Service’s relationship with Government and other agencies. In relation to the current role of MI5 the limited information emerging from court cases and media reports is analysed.
The fourth chapter outlines and analyses the mechanisms that exist to officially provide accountability in respect of MI5. This includes the general UK-wide mechanisms such as the Intelligence Service Commissioner and Investigatory Powers Tribunal. It also includes analysis of the arrangements and safeguards envisaged in the St Andrews Agreement in relation to the transfer of primacy to MI5.
The final chapter provides a critique of the application and impact in practice of the St Andrews safeguards. It also benchmarks the arrangements following the transfer of primacy over ‘national security’ policing to MI5 against the human rights and Patten frameworks for covert policing outlined in the first chapter. This chapter examines the breadth of the accountability gap which has emerged since the transfer and concludes by exploring the question of who is running the most sensitive area of policing in Northern Ireland.