Rather His Own Man

by Geoffrey Robertson

  Brian outlined them over lunch. The manuscript synopsis he had bought revealed that Wright – hired as an electrician – had been initially employed by MI5 to burgle and bug his way around the foreign embassies in London (a breach of the Vienna Convention, but everyone did it). It told how he had then been promoted to the position of interrogator, and claimed he had unmasked many ‘agents of influence’ who had historic connections with Soviet diplomats. He had subsequently become convinced that his own boss, Roger Hollis, the director-general of MI5 from 1956 to 1965, was one of them. His accusations, he said, had not been properly investigated and he had been pensioned off – but without a satisfactory pension.

  There was little doubt that publication of Wright’s revelations as an ‘insider’ would breach the Official Secrets Act, which had a draconian section injuncting and punishing publication of the most anodyne of revelations – the number of cups of tea consumed in the Ministry of Defence, for example. It was even used to ban One Girl’s War, a Mills & Boon-style memoir by a former debutante who had obtained a job as a typist in MI5 during the war and fallen in love with her boss, only to find her romantic hopes dashed by the dawning realisation that he would always be happier in the arms of men. Brian knew that the Treasury Solicitor’s threat to bankrupt his company was overpowering: how on earth could he publish Spycatcher? Over coffee, I gave them an opinion, off the cuff, which went pretty much as follows:

  Publication of Wright’s memoirs was obviously in the public interest – in the international public interest – because Hollis had connections with the CIA and had travelled to Australia to advise ASIO. If, all that time, he was reporting to Moscow, this was certainly a matter about which the public ought to know. But there was no public interest defence to a breach of the Official Secrets Act, so the importance of the book was not a defence.

  There was a ‘public domain’ defence (i.e. that the information had already been made public) to an injunction based on breach of confidence, but British judges would simply decide that it was overborne by the national interest in gagging spies and keeping intelligence service activity absolutely secret. It was certainly true that over previous years much had leaked to journalists and a lot of Wright’s allegations could be found in books published by right-wing journalist Chapman Pincher, although this information had been leaked to Pincher by Wright himself. (As we later discovered, in return for a lot of money.) The further problem was that Wright was an insider and a ‘horse’s mouth’ allegation made in person by him had much more credibility than the same allegation made by a mere journalist, from conversations with an unnamed source. It was a defence that would not fly in an English court. An Australian court, however, might uphold it.

  It followed that the proposed publication in England would be injuncted by the Treasury Solicitor and that appeals would be unsuccessful – and very expensive, because his threat about the state’s ‘bottomless purse’ was true. At this time, before the Cold War ended, English judges had a knee-jerk propensity to uphold every government claim based on ‘national security’, without inquiry as to whether it might be bogus.

  Were Heinemann to publish in Australia, the company would have a reasonable prospect of beating off action by the UK authorities, depending on where the action was brought. Melbourne judges of the time tended to be Empire loyalists; in Sydney, the first-instance equity judges were unpredictable, but the president of the Court of Appeal was Michael Kirby, who was sound on free speech, as were some of his colleagues. Harry Gibbs’ High Court, if the case reached that far (and Mrs Thatcher would be determined that it should), had recently delivered a helpful decision in the case of diplomatic cables about East Timor that Richard Walsh and George Munster had published: the court could decide that there was a public interest defence, or that there could be no confidentiality in the iniquity that Wright revealed, or else because Australia was a sovereign state, and under international law sovereign states did not enforce claims of a political nature at the behest of other states. The High Court would be reluctant to impose the UK’s Official Secrets Act on Australia.

  Win or lose, contesting an action in Australia, which the Brits seemed determined to bring, would achieve massive publicity to whet the appetite of potential readers. It would be worth resisting to the hilt, so long as … (and this was the crucial bit)

  … A copy was sent, sold and secreted in the United States. Under the First Amendment, and most recently the Pentagon Papers case, publication there would be protected.

  Brian was happy enough with my opinion to pay for lunch and in due course Heinemann’s solicitor, David Hooper, instructed me to advise the company on its reasonable prospects of beating off any legal action by the British government in Australia. It began one, in September 1985, before the book had even been completed, and Mr Bailey resolutely refused David’s sensible offer to remove anything that might damage national security: Mrs Thatcher was determined that Australian courts must apply the British Official Secrets Act and stop Wright from writing a word. This was not only a pig-headed refusal to compromise but reeked of colonial assumptions about Australia which were unacceptable at a time when we were (finally!) withdrawing from the Privy Council. So I was keen that the case should be fought and believed it could and should be won.

  Heinemann’s multitude of Australian lawyers, however, did not seem to share my confidence. The publishers, based in Melbourne, had instructed a local firm, which took the mistaken view that different solicitors and counsel should be brought in to act for Wright, and, because the Brits had sued in Sydney, two more firms were retained there. At the first, merely formal, hearing, there were thirteen lawyers in court to represent Wright and eleven to represent Heinemann. This was ridiculous: the costs were exorbitant and the Australian silks were saying that we would have better prospects in the English courts. As we had no prospects there at all, Brian warned me that Paul Hamlyn, the eccentric millionaire philanthropist who owned Heinemann, was minded to throw in the towel.

  By a remarkable, almost Dickensian, coincidence, I came to meet Paul shortly afterwards at the home of our mutual friends, Gordon and Mary Ellen Barton. I encourage him to fight for free speech, but he was hesitant about the cost and the half-heartedness of the Australian lawyers. Another meeting chez Barton was arranged, and Paul arrived as a man transformed. He was giggling as he told us how he had just been approached by an emissary from ‘the establishment’, a rather down-at-heel Tory MP, who had passed on the message that Paul – and particularly Paul’s wife, Helen – would be severely punished if Spycatcher were ever published. Paul would never receive the peerage he would other wise be vouchsafed for his charitable works, and Helen would not become a lady. Paul’s eyes glittered mischievously as he thumped the table and declared, ‘This has made my mind up for me. We are going to publish Spycatcher – whatever the consequences.’

  Paul Hamlyn was the real hero of Spycatcher, and this heavy-handed threat, which doubtless came from Mrs Thatcher, was his turning point. I promised to find a lawyer on my Christmas visit to Sydney who would understand the politics of the case and mount the defence I had planned at a reasonable price. I thought I might pay a visit to an old friend, Little Malcolm.

  I called him ‘Little Malcolm’ because when he first went to Sydney University the Dramatic Society was performing David Halliwell’s play Little Malcolm and His Struggle Against the Eunuchs, about a young man planning from his bedsit to rule the world. Malcolm Turnbull always seemed to be struggling against eunuchs (and still is, by all accounts). He was working as a journalist for the Bulletin while studying law and already had inordinate ambition. We met, in 1979, when he came to interview me while I held a visiting professorship at the University of New South Wales. We shared views on the social potential of law reform and got on like a house on fire. He desperately wanted a Rhodes Scholarship, and I was happy to be his referee. But he was in the doldrums about his application because of Rhodes’ insistence in his will that scholars must have an interest in
manly sports: ‘They pick rugger buggers or cricketers,’ moaned Malcolm.

  ‘No, they don’t – my sport was tennis. There must be some sport you can do.’ We went through his pastimes, and lit upon surfing. ‘But it’s never been considered a manly sport – there are no precedents.’

  ‘There soon will be.’ I stayed up late that night writing his reference, with a disquisition on how surfing should be regarded, especially in Australia, as a muscular male activity. He was duly awarded the Rhodes, and while in Oxford he would visit me in Pembridge Crescent. On one delightful summer’s day I stood in for Tom Hughes at a tiny Oxford church and gave away Lucy, his daughter, at her wedding to Malcolm. Malcolm stayed in London after his course, with a job at the Sunday Times, which was, however, aborted because of a long strike by the print unions – an event that may have helped to shape his political allegiances. He began working for Kerry Packer, sorting out Packer’s rights to cricket teams and to Playboy, and I advised him to become independent – to go to the Bar. He did, but did not stick at it.

  When I called to ask him to take on Spycatcher, his office was in the Packer building in Sydney’s Park Street, where he had recently set up an in-house solicitors firm with his friend and Packer colleague Bruce McWilliam. Malcolm’s political ambitions were in a bad way because he had just suffered attacks – one in Parliament from Alan Missen, a highly respected Liberal senator – for lobbying on behalf of his boss, Kerry Packer. ‘You need this case, for the sake of your career,’ I said when we met early in January 1986. ‘It’s the best way of proving your free-speech credentials and your independence, and it will play well with republicans by standing up to the Brits. You are languishing here doing libel readings for the Bulletin and suffering attacks from satirists.’ (He had at some point morosely shown me a clip of Max Gillies mocking Packer and his ‘cat strangler’ lawyer – more on this shortly.) ‘This case will be fun and, most important, it will be the making of you.’ I cannot vouchsafe my words as verbatim, but that was the spirit of them, and they worked. Malcolm agreed to act for Heinemann at a low fee in the legal action being brought by the British government.

  The court where they had chosen to file was in Sydney. This was a strategic mistake, perhaps made because their diplomats preferred to work from their favourite consulate in Kirribilli, overlooking the harbour, rather than from Collins Street. It was the first of many tactical blunders by Mrs Thatcher’s legal army – so quick to bully but so weak and ill-informed when it came to a fair fight. Turnbull relished it: after the trial he faxed me to say what a great case it was: ‘I am so grateful to that little turd Bailey for procuring it for us.’ Little Malcolm saw himself as David pitted against Goliath, although David did not have a media mogul at his back: Kerry Packer had to approve Malcolm’s involvement – and did.

  Meanwhile, from England I sent David a few slingshots – submissions setting out our legal argument. I had already been hunting up some evidence. The British writ had come with an affidavit by Sir Robert Armstrong, the Cabinet Secretary, claiming that in 1967 the Lord Chancellor had made a blanket prohibition on the release of any document making any reference to the security service. That Lord Chancellor was Lord Gardiner, my teenage idol who had defended Lady Chatterley and convinced Harold Wilson’s government to abolish the death penalty and theatre censorship, as well as the crimes of homo sexuality and procuring abortion. It was a delight to meet him again, and although he was in the advanced stages of Hodgkin’s disease his mind and memory were precise. Those electric blue eyes, which had once terrified witnesses like torches shone on rabbits at night, saw through Armstrong’s claim. A blanket ban on memoirs was not what Lord Chancellor Gardiner had meant at all.

  I was also keeping an eye on the cases the government was bringing in Britain against newspapers that had reported any of the details in the book: predictably, the courts always ruled against them. One judgment was brought down on the day I took a flight to Australia – David Hooper quickly obtained a certified copy for me to carry to Malcolm, who was appearing in a pre-trial hearing two days later. The ever-gentlemanly silk the government had instructed told the judge that the British High Commission would have the certified judgments available for the court the following week. Turnbull stood, perhaps with the hint of a smile or more probably with a broad grin (I don’t know – like Macavity, I wasn’t there) to say, ‘Don’t worry, Your Honour, I have the certified copies here.’ He told me there was pandemonium from the large team of British lawyers and spooks on the other side of the courtroom: how on earth had the certified copies come to Australia virtually overnight? Via the Soviet airline Aeroflot? Was Turnbull being assisted by the KGB? Mr Packer’s fax machines at Park Street were soon to show signs of interference.

  Then, in England, a funny thing happened. Paul Hamlyn and I finally read a secret copy of the just-finished book. It did not really have the kind of public interest we had initially envisaged – quite the contrary. Peter Wright turned out to have no qualifications. Nepotism had taken him into the intelligence service (his father was one of their scientists), and having begun in a job fixing surveillance devices, which is where he should have remained – he was a competent enough bugger – somehow (probably because of his intense right-wing paranoia) he had become an interrogator, virtually an inquisitor, harassing and embarrassing left-wingers who had looked kindly on communism in the thirties, or at least until the invasion of Hungary in 1956. A number of his victims (including a Labour MP) had committed suicide, perhaps after the stress of his McCarthyite interrogations. Wright believed the most incredible theories peddled by defectors – that the Sino-Soviet split was a cover story, for example. His case against Roger Hollis had no real evidence – the man emerged as a dull but dutiful civil servant, who had aroused Wright’s suspicions because he had spent some years in China in his youth and was having an affair with his secretary.

  But wait – there was a real public interest here. It was that a man of Wright’s malice and lack of judgment could ever become an assistant director of MI5. For me, this was the book’s truly amazing revelation, together with its description of British ‘intelligence’ officials – pin-striped dunces who retired to their men-only clubs for well-wined lunches, topped off with a few double brandies before tottering back to their offices in Mayfair to gossip about sex scandals they might reveal involving ‘lefties’. Wright (who had only two supporters on MI5’s staff – an ex-policeman and an ex-army major) deduced that the organisation must have been infiltrated at the top because so many of their operations went wrong; he never considered the alternative hypothesis, that they were going wrong because of MI5’s incompetence.

  There were a few amusing stories in the book, such as the incident at the Buckingham Palace roundabout when an MI5 car trailing a car of Russian ‘diplomats’ came too close and crashed into it: the drivers, both spooks, got out and solemnly swapped their fake addresses. There was the argument about the ‘watchers’ who sat, male and female, in cars outside houses and were expected to fall into each other’s arms to allay suspicion when a suspect emerged – there had been a great internal debate about whether this might encourage in-house infidelity. There was a story about the plot to assassinate Egypt’s President Nasser (which could have been of interest to Australia, had it taken place at the time he was meeting the West’s emissary over the Suez Canal crisis, Sir Robert Menzies) and another about a cabal of spooks who linked up with right-wing businessmen to plot the overthrow of Harold Wilson’s government. But for any intelligent person, and any analyst reading it in Washington or Canberra, the message of the book was how incompetent MI5 had been in the fifties and sixties, running operations that did not operate and chasing its own tail by investigating its directors. (Not content with Hollis, the paranoid Wright also launched an inquiry into his deputy.)

  Peter Wright had unmasked himself (with the help of Paul Greengrass) as a highly disagreeable reactionary with no moral compass: he was in fact on quite a good pension but was bitter be
cause he believed it should be better, so he had been selling secrets for several years to Chapman Pincher, earning £30,000 through a Swiss bank account. He had left England in 1975 to run a horse stud in Tasmania, telling friends that the motherland had ‘too many blacks’ (not a problem in Tasmania, where they had been all but wiped out by the British more than a century before).

  My experience of Wright, when I spoke to him, was of a sour man who would do or say anything for money or revenge. He lived in a Little Buttercup world, where things were always the opposite of what they seemed. I told him I had been a board member of the National Council for Civil Liberties in the seventies when MI5 had tapped our phones. ‘Yes, they did, they did, and that just proves how the organisation had been infiltrated by communists at the very top.’

  How so? We were harmless.

  ‘Exactly so, exactly so. The reds were in control of MI5. They took their resources away from bugging the Soviets, and deliberately wasted them on bugging insignificant organisations like the NCCL. Do you see?’

  I did not – relations between MI5 and the Left had been hostile ever since officers now thought to be from both MI5 and MI6 had manipulated the defeat of Labour’s first government back in 1924 by forging the Zinoviev letter, which suggested its ministers were allies of the Soviets. Wright was exhibit number one in a case against the kind of security services whose intolerance was incapable of protecting a tolerant state.

  Back at Gordon and Mary Ellen’s dinner table, Paul Hamlyn had now convinced himself that he was publishing the book at the expense of his peerage because Wright himself, rather than Hollis, needed to be exposed and MI5 reformed. The Brits had sued both Wright and Heinemann, and the two were not really on the same page. Wright was claiming public interest in exposing Hollis, while Heinemann, stepping back, could claim that, in any event, the public would be legitimately interested in judging Wright and his coterie in MI5. They were both represented by Malcolm at my suggestion, to save costs and strategically to present a united front. One night Paul (a fastidious man) suddenly stuttered, ‘I don’t really want Turnbull representing my company. He’s alienating people I know, and he’s a bit …’ [he reached for a word] ‘… uncouth.’ There was a pause, and then he said, ‘I would like you to represent the company.’