07:44, December 20 302 0 theguardian.com

2019-12-20 07:44:04
MI5 policy allowing informants to commit serious crimes ruled lawful

MI5’s partially secret policy allowing agents and informants to participate in serious crimes is lawful, judges have ruled by a 3-2 majority.

In a 56-page judgment, the investigatory powers tribunal (IPT), which hears legal complaints about the intelligence agencies, declared that the guidelines do not breach human rights or grant absolute immunity to those who commit offences such as murder or torture.

It is the first time the IPT has published dissenting judgments, both of which in this case are highly critical of the statutory framework surrounding the handling of agents. Many of the key arguments turned on the exploitation of informants within the IRA and loyalist paramilitaries during Northern Ireland’s Troubles.

The coalition of civil liberty groups that brought the challenge - Reprieve, the Pat Finucane Centre, Privacy International and the Committee for the Administration of Justice – announced immediately that they would appeal.

Opening the majority judgment, Lord Justice Singh, Lord Boyd and Sir Richard McLaughlin acknowledged: “This case raises one of the most profound issues which can face a democratic society governed by the rule of law.”

Lawyers for the civil liberty organisations argued that what is known as the “third direction” – guidelines permitting agents to become involved in criminal conduct, which were revealed in March 2018 – were illegal.

Crucial details of the guidelines specifying whether there are limits on such criminal activity remain secret. Part of the IPT hearing was held behind closed doors with the media and lawyers for the claimants excluded. The tribunal has also published a secret or “closed” version of its final judgment.

Explaining that the third direction guidelines are still not published in full, the majority judgment states: “For the reasons which are set out in our closed judgment, there is no more of the text of the guidelines which can properly be put into the public domain.”

Maya Foa, Reprieve’s director, said: “The IPT’s knife-edge judgment, with unprecedented published dissenting opinions, shows just how dubious the government’s secret policy is. Our security services play a vital role in keeping this country safe, but history has shown us time and again the need for proper oversight and common sense limits on what agents can do in the public’s name.”

Ilia Siatitsa, a legal officer at Privacy International, said: “Today the investigatory powers tribunal decided that MI5 can secretly give informants permission to commit grave crimes in the UK, including violence. But two of its five members produced powerful dissenting opinions, seeking to uphold basic rule of law standards.

“As one of them put it, it is wrong to ‘open the door to … powers of which we have no notice or notion, creating uncertainty and a potential for abuse’. We think the bare majority of the IPT got it seriously wrong. We will seek permission to appeal to protect the public from this abusive secretive power.”

Daniel Holder, deputy director of CAJ, 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. This close ruling is far from the end of the matter.”