CAJ has expressed concern at the ongoing secrecy over the potential operational relationship between MI5 and military units operating in Northern Ireland.
This follows a ruling by the First-tier Tribunal (Information Rights) (1) to block disclosure of a section (henceforward referred to as ‘the disputed paragraph’) of the British Army’s terms of reference for ‘Operation Helvetic’.
Operation Helvetic is the current operational name for the British Armed Forces’ residual operation in Northern Ireland, replacing the previous Operation Banner in July 2007.
CAJ has been seeking the disclosure of material related to the terms of reference for Operation Helvetic for more than two years, with mixed results (2).
In July 2018, after receiving a complaint from CAJ, the Information Commissioner ordered the Ministry of Defence (MOD) to disclose additional (previously redacted) information on Operation Helvetic (3).
However, this decision was subsequently appealed by the Ministry of Defence (MoD) to the First-tier Tribunal (Information Rights). The MoD appealed specifically to prevent disclosure of ‘the disputed paragraph’ on the basis of an exemption (s23(1)) in the Freedom of Information Act for information that “relates to” MI5 or other intelligence & security agencies and s24 (national security).
Notably, the Ministry of Defence had initially not opposed the release of this disputed paragraph, but changed its position in light of an intervention from the Northern Ireland Office (NIO), who were concerned about the “averse national security impact” of releasing the information (4). The NIO Secretary of State is responsible for MI5 operations in Northern Ireland.
The First-tier Tribunal considered this matter in August 2019 and has ruled in MOD’s favour (5) – a decision that was not shared with CAJ until earlier this month. The Tribunal concurred with MoD that the MI5 / national security exemptions are engaged. However, the reasoning behind this is contained within a confidential annex that has not been made public.
The role of covert operations involving MI5 in Northern Ireland the past, including their relationship with covert Army units has been highly controversial. The Good Friday Agreement-mandated Patten Commission recommended that the role of the military in Northern Ireland be limited to bomb disposal and, if needed, large-scale public order situations.
However, it has been previously revealed that the covert Special Recognizance Regiment (SRR), which emerged out of the controversial 14th Intelligence Company (6) and Force Research Units (FRU), has been active in Northern Ireland (7).
Following the 2006 St Andrews Agreement, ‘lead responsibility’ for national security intelligence in Northern Ireland passed to MI5 in 2007. Annex E of the St Andrews Agreement and Memorandums of Understanding set out the PSNI / MI5 role.
Daniel Holder, Deputy Director of CAJ, said: “Given the past control relationship between MI5 and covert military units like the FRU, we were intended to be in a new era of accountability, whereby the basic issue of the command and control of military units is not kept secret.
“It is concerning enough that the large MI5 presence here sits outside the policing accountability bodies set up as part of the peace process. The public have a right to know if military operations here comply with the terms of the peace settlement, and there is no legitimate reason to keep any MI5 role with covert military units secret.
“We are still dealing with the legacy of MI5’s previous role with covert units of the British Army that have never been properly investigated, as the Supreme Court recently found in relation to Finucane.”
- The First-tier Tribunal (Information Rights) is responsible for handling appeals against decisions made by the Information Commissioner’s Office (ICO).
- CAJ issued the original Freedom of Information request in 2017 on the 10th Anniversary of Operation Helvetic. In response, the Ministry of Defence (MoD) disclosed a small portion of information, but withheld the remainder of the information identified as relevant to the FOI request.
- The ICO Decision Notice can be read here: https://icosearch.ico.org.uk/s/search.html?query=Decision+notice+FS50714296&collection=ico-meta&profile=_default
- It is stated that NIO raised a concern in Paragraph 15 of the First-tier Tribunal judgment (MoD v CAJ & Information Commissioner, EA/2018/0198).
- Again, this is set out in the above judgment.
- See for example https://www.eliteukforces.info/special-reconnaissance-regiment/
- See https://www.thedetail.tv/articles/psni-gets-limited-access-to-army-intelligence-says-former-soldier
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