Rather His Own Man

by Geoffrey Robertson

  I doubted whether I had the ‘couthness’ he wanted, and this was a prospect I had never envisaged. I had been careful to keep my role, in what the Treasury Solicitor might otherwise see as a conspiracy to breach the Official Secrets Act, limited to opinions to solicitors and discussions in restaurants and behind the thick walls of Gordon Barton’s establishment. I was applying for silk, which my career needed so I could appear in Commonwealth courts, and had little doubt that the kind of reprisals threatened against Paul would be applied to his counsel. I could stomach that but, most importantly, I pointed out that it would be cheaper and tactically safer to let Malcolm continue to represent both parties, rather than opening up a second front which could be exploited to drive a wedge between Wright and Heinemann. (The company might be successfully defended, but if Wright was injuncted, it could not publish his book.) Paul was adamant. The next day I took my concerns to my head of chambers, Emlyn Hooson MP, who thought reprisals likely but promised to do his best to protect me from them.

  It was a measure of my naïvety about Malcolm that, despite my grave doubts about the tactical implications, I honestly thought he would be pleased with this turn of events. My appearance for the publisher would give him support while he argued the case for Wright. I would research the law (which I was doing already) and had an in-depth knowledge of security service ‘dirty tricks’ from other cases I had done. Malcolm would have a friend in court. It was with that feeling (hilarious, in retrospect) that I picked up the telephone to tell him.

  Any spooks tapping Malcolm’s or my telephone on 20 October 1986 would have been entranced at what they heard. Turnbull went into meltdown. I shall delete the expletives. He was furious, seemingly at the prospect that he would be sharing the limelight with someone else – especially me. ‘You will take it over. You will get the publicity. You planned to betray me all along.’

  Now, I have to say that if Malcolm had, quietly and reasonably, echoed my concerns about separate representation, I would have agreed with him. But I was not prepared for this volatility, which ended, as I remember, with a furious threat to withdraw. I was certain he would never let go of a case that would be the making of him, so I called him back that evening to see whether his rage had subsided. It had not. The trial was to come on in a few weeks, and Turnbull’s threat, although obviously bluff, was an expression of insecurity that nobody needs in their lawyer. I went back to Paul with the advice that was too late for me to act for his company in the courtroom, and I felt that Turnbull’s lust for glory might be a good thing – he would now have to work hard to win, and in any event keeping him on for Heinemann as well as Wright would prevent the government exploiting the differences. I put his upset down to his recognition of how much the starring role in this case would help his career, which had been my argument for his taking it on in the first place.

  Having convinced Paul to stick with his counsel of my choice, I went off to Singapore to do battle with Lee Kuan Yew (a tougher opponent than the British government) on behalf of the Wall Street Journal, and returned to fax a legal submission for Spycatcher a few weeks later. Malcolm did the trial well, assisted by the stuffed-shirt Sir Robert Armstrong, who caused a scandal at Heathrow as he was leaving for Sydney by assaulting a press photographer.1 In the witness box Armstrong was unable to explain satisfactorily why the government had allowed so many of Wright’s ‘secrets’ to be published through the mouthpiece of Chapman Pincher. He was also forced to admit that he had written a letter which had been ‘economical with the truth’.

  The judge was unimpressed: although no great jurist he took the UK case apart and held for the defence, on every argument except the one that Australian courts should not enforce the penal laws of a foreign country. I provided a brief in support of his judgment for the Court of Appeal, where Michael Kirby held in our favour with a splendid decision in support of free speech. In the High Court the judges very quickly and coolly agreed that Australian courts should not enforce the penal laws of a foreign country by imposing the draconian British Official Secrets Act on an independent nation. Spycatcher could finally be published in Australia.

  But by now events had moved on. After our lunch, Brian Perman had conveyed my advice to Paul Greengrass’s literary agent, who arranged for a copy of the manuscript to move to the US. Jane Turnbull, from a public phone box in Bywater Street, Chelsea (the location John Le Carré uses for George Smiley’s London flat) then sold the American rights to Viking/Penguin. MI5 did not move quickly enough, although two of its officials, with bowler hats and umbrellas, posed as sales tax inspectors to ransack the literary agency’s offices. They found nothing – the agent, Giles Gordon, had taken the Greengrass/Wright file home and hidden it under his bed.2 Viking bided its time during the early publicity from the Australian proceedings and then announced it was publishing in America. A furious Mrs Thatcher was advised that under the First Amendment she could not injunct – all that could be done was to seize imported copies at UK ports and airports. This, of course, she obstinately did: the book, on sale at airport bookshops in New York and Los Angeles, and in Europe, sold like hot cakes to passengers on flights to Britain. Many were smuggled in bulk, and distributors sold them in the street. The judges loyally injuncted them, and one Labour council was actually prosecuted and fined for placing a copy in its public library, at a time when the book was being read throughout the world.

  In the end, Viking sold the serial rights to the Sunday Times, which published a long précis of the book. It was, of course, sued by the government – successfully. An end to these ridiculous legal actions funded by the ‘bottomless purse’ of the Treasury Solicitor came only when the European Court of Human Rights held that Mrs Thatcher’s actions were an abuse of free speech. Her obsession with banning the book confirmed how counterproductive political (or any other) censorship can be. Spycatcher is a boring book which would not have sold well (and would only have sold in England) if her government had not intervened. Instead, it sold nearly two million copies and made four million pounds for its publishers. (On contemplating my own paltry bill for advising them how to publish, I wondered whether barristers should be entitled to claim a success fee.) It also blasted Hollis’s reputation – he could not mind because he was long dead, but his nephew ticked me off. ‘What are you saying about Uncle Roger? He was the nicest, most decent, most loyal man you could ever imagine.’ I am sure he was – thirty years on from the publication of Peter Wright’s paranoid fantasies, no scintilla of evidence has emerged from KGB archives to suggest anything to the contrary.

  I was then asked to protect Malcolm’s burgeoning reputation in two libel cases in England. Chapman Pincher sued him for defamation, for comments he had made on breakfast television to the effect that Pincher still owed Wright money. Unfortunately for Pincher, Wright had kept all the letters in which he had, for profits that he split with Pincher, spilt state secrets, and they were in our possession. I drafted a letter pointing out that a court might take the view that the evidence showed both of them profiteering from a grave breach of the Official Secrets Act. We never heard from Pincher again and several years later I had his claim struck out with an order that he pay all costs. His was a ‘gagging writ’ – a false claim brought to try to suppress an uncomfortable truth.

  The next time, it was Turnbull’s turn to be defamed – by larger-than-life Canadian mogul Conrad Black. Black had fallen out with Malcolm when Black’s Tourang consortium took over the Fairfax media holdings in 1991. In his autobiography, published two years later, Black rehearsed with relish the Sydney scuttlebutt that Malcolm (when he really was little) had threatened to kill his girlfriend’s cat if she left him for another suitor. She did, and rumour had it that he killed the cat by strangling it. Black went one better: he alleged that Turnbull had put the cat in the freezer while she was out. I have to say the only evidence for any of this rubbish is a letter young Malcolm wrote to the cat, which was produced in a Sydney libel action: it is rather boyishly romantic, and contains no
threat of cat-ocide if its mistress remains cruel.3 Black’s claim that Turnbull was capable of some pussy gulag was very defamatory – especially when published in England, a nation of animal lovers. I drafted a ‘letter before action’, which caused Black to withdraw the book and remove the allegation in the British and Australian editions, but we had no power to have him remove the passage from the Canadian edition. There, perhaps, some may really believe the nonsense that the Australian prime minister once murdered a cat, although since Canadians are more than happy to club baby seals to death, I don’t suppose they think any the less of him.

  The value of publishing Peter Wright’s malicious memoirs was not merely to push Little Malcolm towards his destiny, it was to shake up – indeed quickly reform – the British security service so that it was an effective force by the time of its next test, the surveillance of Islamic extremism. This took some time: in 2000, David Shayler, a former MI5 officer, provided a story to the Mail on Sunday about how MI5 was still keeping files on leftist politicians, or at least refusing to destroy files kept on them in their socialist youth. I acted for the newspaper in the difficult business of fixing a payment to Shayler without it seeming an illegal inducement to spill state secrets. But Shayler needed money to go abroad to lie low and instruct lawyers to defend his actions. I was happy to help –Spycatcher had shown an urgent need to depoliticise the intelligence services. Gerald Gardiner had told me how, even when he was Lord Chancellor, he would hold conversations with his attorney-general in a car with a friendly driver because he suspected the security services were bugging his offices to learn of and to leak these Labour law officers’ plans; Peter Wright’s stories of MI5 plots against Harold Wilson gave his fears some credence. MI5 had also been abusing its power to leak information about ‘wrong uns’ – their jargon for leftists – to right-wing journalists like Pincher and to newspaper gossip columns. Private Eye was a favourite: the editor told me that he could recognise their stories, impeccably typed on unheaded notepaper, written in the magazine’s style to ridicule or damage some figure on the left. He always published them because he assumed they must be true.

  Once, I was the target of the scoundrels who leaked this sort of scuttlebutt to the Eye. I had attended a weekend conference at Christ Church College in Oxford. The attorney-general, who was in attendance, was a weak man whom I had criticised in a number of articles in the New Statesman, so I was surprised to be given the best room in the college. I suspected nothing and used it to entertain a female friend, who spoke about her political plans. A fortnight later some details, which could only have been obtained by bugging the room, were published in Private Eye, in an attempt to damage her career. The editor left my name out because I had defended Private Eye in the past, but that did not lessen my friend’s distress, or mine, at the invasion of our privacy. I never forgot those ratbags in MI5: it was one of the factors that had persuaded me to help to have Spycatcher published and it contributed to my opinion that absolute secrecy will inevitably cloak some abuses of power; that the security services must be overseen by independent judges, and that its members must abide by a code of conduct.

  Otherwise, my experiences with security services have been relatively benign. When I first came, in the seventies, to undertake cases where ‘national security’ was alleged to be involved, it was a common assumption that your telephone would be tapped. The best indication, so I was informed by someone who knew, was not (as everyone presumed) the sound of strange clicks or static on the line, but whether your telephone worked perfectly. Tapping was not necessarily detrimental to my clients – when I was junior to the great Jeremy Hutchinson, defending a journalist, Duncan Campbell, who was facing a long term of imprisonment for exposing the eavesdropping role of GCHQ, Jeremy and I would hold long, voluble telephone conversations, inventing defence witnesses and imagining tactics that would cause maximum embarrassment to the intelligence services. The listeners must have taken us seriously: Jeremy was soon invited to a dinner party at which he was placed next to a senior figure in MI6, who indicated they would accept a plea to a lesser charge that did not entail a long prison sentence for our client. And I received direct evidence that my telephone was tapped when I became too busy to remember to pay my bill, ignoring repeated notices that unless I did so it would be cut off. Eventually I called the provider, British Telecom, to tell them that a cheque would be in the post. ‘That’s fine,’ said the official. ‘We’ll reconnect your telephone as soon as we receive it.’

  ‘Oh, it doesn’t need reconnection. It hasn’t been cut off yet.’

  ‘Yes, it has.’

  ‘No, it hasn’t yet.’

  ‘It most certainly has been.’

  ‘It has not; I am speaking to you on it.’

  ‘Oh. Hmm. Just a minute …’ The official took more than a minute, doubtless to consult a list marked ‘intercepted telephones – not to be disconnected’ and returned to say quickly, ‘Okay, just send the cheque.’ I did so only when the case ended, having intuited that the state’s appetite for information is greater than its appetite for money.

  Don’t think I am opposed to state surveillance. I welcomed police protection when I was defending Salman Rushdie, condemned to death by fatwa and with a bounty on his head. He was a friend, and we put him up in our attic, guarded by Scotland Yard’s Special Branch. When I defended him in a blasphemy case brought by Muslim prosecutors, there was some concern that terrorists might despair of finding Salman and choose his lawyers as a target instead. Special Branch said they would show us how to look for bombs placed under my car. We expected them to have high-tech equipment, but they brought us a mirror and showed us how to tie it to a broom. We did, and looked. ‘But everything looks like a bomb under there,’ Kathy wailed. We had some happy weekends with Salman and his police protectors at cottages in the English countryside – Kathy noticed that it was always the policemen who volunteered to do the washing up. One of them had an unreconstructed tendency to flash his gun when alone with our nanny, polishing the barrel very slowly.

  One problem with surveillance – even when it is entirely legitimate – is that the spooks can jump to the wrong conclusion. In 1990 I acted for an Islamic extremist named Yasin Abu Bakr, who led 114 followers to attempt a coup in Trinidad, killing eight policemen and doing enormous damage. Abu Bakr and his men were all acquitted on a technicality (see chapter 14), and a few years later I received a message that he was coming to Britain and wanted to talk to me. I did not believe that the authorities would ever let him into the country, but said that I would see him if they did – for no better reason than to urge him to pay my long overdue fee, and, more importantly, the fee of my impecunious junior. To my amazement he was allowed to enter, so I visited him briefly at a hotel near Heathrow. I walked to his room along an empty corridor, and our discussion was brief: he wanted me to represent him in a case about his mosque. I said I would consider doing so, but only if he paid all his outstanding fees. That was the long and short of our conversation.

  A few days later, an old friend, who was by then the attorney-general of Trinidad, called me. ‘I’ve just had a visit from the British high commissioner. He wanted to know why my friend Mr Robertson was paying late-night visits to Abu Bakr!’ The authorities obviously had surveillance in the corridor: if they had gone the whole hog and bugged the room, they would have discovered the innocent reason. For spooks, a little knowledge can be a dangerous thing.

  In the late 1980s, by way of a reality check, I experienced Soviet surveillance on my visits to Prague to help its leading dissident, Václev Havel, who was followed everywhere by secret police ready to arrest him and throw him back into prison for his philosophy and politics. I was followed too, and although I was not in danger like Havel (the worst that could happen to me was to be put on a plane to London) it was a grubby experience. Every morning as I left the lobby of the hotel some sad stooge would drop the newspaper behind which he had been concealing himself, and tail me. I took these policemen to museum
s in the hope of improving their education, and to visit Prague’s Jewish cemetery, a maze of tall tombstones leaning at crazy angles, behind which I would soon shake them off.

  In due course the Soviet Union collapsed, the Cold War seemed to end and in the UK the IRA guns and bombs fell silent after the Good Friday Agreement. The most dangerous ‘terrorists’ in Britain were members of the Animal Liberation Front, who rescued smoking beagles and threatened scientists who used animals in experiments (or at least used nice animals like dogs – they did not seem to mind scientists dismembering rats). But even in the halcyon period before Islamic extremism took hold, spooks in Britain did not always conduct themselves ethically: secret police from Scotland Yard’s undercover squad hopped under the bed covers of some of the women protestors they were surveilling, who subsequently became pregnant, at which point their secret police lovers decamped. It was a truly obscene example of how government spies, even in the most civilised of countries, will behave immorally (the women were deliberately deceived and violated) if not carefully regulated. My chambers helped to expose the scandal and acted for the unwitting mothers when they sued Scotland Yard for child maintenance (it paid up).

  Then, in the last decade, came the ethical dilemmas of dealing with suspects believed – sometimes rightly – to be very dangerous terrorists. Under President George W. Bush the CIA’s way of dealing with them was by torture. How was British intelligence, bound by law to abjure torture, to turn a blind eye while continuing its important collaboration with the CIA? The issue arose in the case of Binyam Mohamed, an Ethiopian-born British resident who was arrested in Pakistan in 2002, and was held there without access to a court or lawyer. An MI5 officer was sent to interview Mohamed in Pakistan, and the questions this man asked made clear that he knew the prisoner’s intended fate – he urged him to avoid it by confessing. Mohamed was then ‘rendered’ to a secret torture prison in Morocco before being sent to Guantanamo, where MI5 washed its hands of him. But had it been complicit in his torture? I was acting for the New York Times and the Washington Post and we wanted disclosure of the communications on his case between the CIA and MI5: the British government resisted, claiming an Anglo-American protocol which absolutely barred disclosure by either state if the other were to insist upon secrecy, as Washington did.4