The British Government is processing in two brief parliamentary sessions a law that would allow multiple entities of the State – from any police force to, for example, the supervisory agency of food standards – order illegal activities from their undercover agents. This new norm does not establish limits to these acts, which can be authorized by internal personnel of the same entities.
The purpose of this brief law is, in principle, to clarify the management of infiltrated agents by the Security Service, known as MI5. In December, a ruling by majority of the Investigative Powers Tribunal (TPI) agreed with the secret service on the legality of those agents, but left open flanks that the Government has now wanted to close with this new law.
There are numerous cases in Northern Ireland where IRA infiltrators are suspected of committing multiple crimes, while moles embedded in loyalist groups gave information to gunmen on targets desired by the security forces or executed by themselves. For example, the case of Republican lawyer Pat Finucane has been under investigation for 23 years.
Ben Jaffey, who acted on behalf of the Finucane Foundation and the British associations that presented the joint complaint before the aforementioned court, acknowledged in the deliberations – according to the sentence – that his position regarding that State agents cannot commit illegal acts it would lead to the conclusion that you should not infiltrate agents into organizations that are illegal to obtain information.
It is, according to the ruling, “one of the most profound questions that a democratic society governed by the rule of law can face.” It is also, although without depth, in James Bond fictions. Thus, ‘M’ takes away the “license to kill” when, in the film with that title, 007 prefers to avenge a friend of the perfidy of the drug trafficker Sánchez to fulfill the mission that his boss asks of him.
Experience and limits
But, do all the entities of this law seek a license to kill without legal consequences? No, but the directives of the Security Service were secret until 1952 and, both then and in subsequent reports and directives, the details on the management of the infiltrated agents have been left in annexed pages or in paragraphs directly crossed out. The TPI also published two judgments, one public and the other confidential.
Until 1989 there was no law that recognized the existence of MI5. Reading the legal evolution and the cases suggests that, although knowing that no law gives them legal immunity, Secret Service personnel did what they wanted, then explained to police or prosecutors that they had discovered a wrongdoing and that the public interest was inadvisable for an investigation.
Prime Minister David Cameron issued two directives on how the Service should act, but kept the third a secret about undercover agents breaking the law, because of “the risk to the National security if known in public «. Her successor, Theresa May, published that she had issued her third directive, specifically on »the review of the application of the guide for the use of officers involved in crimes«.
The non-governmental organizations then presented their complaint to the ICC. Meanwhile, London Police slow down the investigation into their secret agents – who had children with women from the organizations where they infiltrated, they encouraged illegal acts, they penetrated unions. Minister James Brokenshire says the limit to all of this is the Human Rights Act, but David Davies, a former Brexit minister, warned him that he could take his new rule to court.