The Defence of the Realm
Page 102
The Falklands conflict in 1982 led to a further breach of the old intelligence taboos. Faced with Opposition charges that the government had ignored intelligence warnings of an Argentinian invasion, the government appointed a commission of six Privy Counsellors (two of them Labour politicians), headed by Lord Franks, to carry out the ‘Falkland Islands Review’. The Prime Minister did not do so willingly. According to David Owen, ‘It was like dragging teeth out of her to agree to the Franks enquiry.’ Mrs Thatcher’s reluctance was understandable. For by establishing the Franks Committee she virtually conceded in practice the principle of an oversight committee for the intelligence community which she continued to resist. The Committee was given unrestricted access to relevant intelligence files and personnel. Having accepted the Franks Committee’s findings on the Falklands conflict and its recommendations on the joint intelligence system in 1983, the Thatcher government could scarcely argue credibly that a standing committee of similar structure (such as the Intelligence and Security Committee set up a decade later) would be unworkable. It did, however, argue precisely that.7 On intelligence accountability, as on statements to parliament, Whitehall sought to preserve a status quo which had already been breached. At a meeting on 23 February 1983, chaired by the Intelligence Co-ordinator (and future DG), Sir Antony Duff, to discuss the case for and against changing the current system of oversight and accountability:
Sir Antony Acland [PUS at the FCO] began by saying that his own view and that of the Foreign and Commonwealth Secretary was that there was no need to change the present policy on accountability and oversight unless there was very strong Parliamentary pressure to do so and that it was desirable to resist the attempt by various Select Committees to encroach in this area. This was a matter of political judgment but both the Foreign and Commonwealth Secretary and the Chief Whip considered that the present position could be maintained.8
The case for a body on the lines of the future Intelligence and Security Committee was thus on the political agenda for the first time (though the model then most frequently suggested was a parliamentary select committee). When Christopher Andrew had suggested the idea in 1977, it had been received in Whitehall, according to Peter Hennessy in The Times, with all the enthusiasm normally reserved for insulting references to the Royal Family. By 1983, however, it was Party policy for both Labour and the Liberal–SDP Alliance.
A third area in which the intelligence taboos suffered significant erosion during the first two Thatcher governments concerned their use of the Security Commission. Previous administrations had used it only to report on security breaches within Whitehall and the armed services, including those associated with sexual irregularities by ministers. Between 1982 and 1985, however, the Commission produced, at government request, four major reports on the intelligence community reviewing security procedures both in the community as a whole and individually in GCHQ, the Defence Intelligence Staff and the Security Service after the convictions of, respectively, Geoffrey Prime, Philip Aldridge and Michael Bettaney. A summary of the first report’s recommendations and the bulk of the other three reports were published. They pulled few punches. Though reassuring as regards operational effectiveness, the 1985 report on the Security Service called for ‘a thorough-going re-examination of the personnel management services’ – an unprecedented official public criticism of the running of the Service.9
The most influential attack on the traditional taboos came, however, from the courts. By the mid-1980s British juries were reluctant to convict under the old discredited Official Secrets legislation. The government also came under pressure from the European Court of Human Rights. In 1984 the Court upheld a complaint about the tapping of his phone by a British businessman, James Malone, who had been acquitted on a charge of receiving stolen goods. Article 8 of the Human Rights Convention requires respect for the privacy of citizens’ private and family lives, homes and correspondence, but recognizes the right of public authorities, ‘in accordance with the law’, to infringe these rights on specified grounds which include ‘the interests of national security’ and ‘the prevention of disorder or crime’. Since, however, telephone tapping in Britain was not ‘prescribed by law’, the Court found that Article 8 had been contravened. That judgment led directly to the 1985 Interception of Communications Act, which provided for a commissioner to monitor warrants for telephone tapping and a tribunal to investigate complaints.10
During the passage of the Act government spokesmen claimed that it reflected the cabinet’s desire for openness and accountability in the use of the HOWs. The shadow Home Secretary, Gerald Kaufman, attacked these claims as ‘effrontery’:
The Government . . . have been dragged kicking and screaming all the way. They would have continued to resist if it had not been for the Malone case. It was Mr. James Malone who, when tried for dishonestly handling stolen goods, discovered that his telephone had been tapped by the police. It was he who brought a High Court action against the Metropolitan police. It was he who, even though he lost the case, heard the judge, Sir Robert Megarry, state in court that telephone tapping is a subject that cries out for legislation, who took his case to the European court and who then, almost a year ago, saw the House of Lords pass, against the Government’s wishes, a Labour amendment to the Telecommunications Bill placing controls on interception. That is why the Government is legislating. It is not because they want to; it is because they have to.11
There was a certain amount of ‘effrontery’ on Opposition benches too from former Labour ministers who protested against the breadth of the powers for the interception of communications contained in the Act. The Home Secretary, Leon Brittan, reminded them that HOWs under Labour governments had operated under ‘precisely the same criteria’. The Act did not confer ‘any additional powers whatsoever’, but simply provided, ‘for the first time, a clear and comprehensive statutory framework for the interception of communications’.12
Media attacks on telephone tapping by the Security Service continued. In the 20/20 Vision television documentary ‘MI5’s Official Secrets’, broadcast on Channel 4 just prior to the Commons debate on the Interception of Communications Bill, the former Security Service officer Cathy Massiter claimed that some prominent members of the peace movement and trade unions were under MI5 surveillance. Massiter, whose claims were supplemented by those of an anonymous, retired Service secretary, was clearly in breach of Section 2 of the Official Secrets Act. Both Massiter and the secretary were prohibited by the terms of their employment and declarations they had signed on their retirement from disclosing any information they had acquired while working for the Service. After an advance viewing on 20 February 1985, the Independent Broadcasting Authority decided, on the advice of its lawyers, to stop the programme being transmitted until it became clear whether or not the government intended to prosecute Massiter or the producers. In the event, the Attorney General, Sir Michael Havers, decided there was to be no prosecution, almost certainly chiefly because of the belief after the trial earlier in February of the MoD official Clive Ponting that, however clear the law, a jury would not convict. So discredited had Section 2 of the Official Secrets Act become that, despite the fact that Ponting admitted leaking confidential documents on the Falklands conflict to Tam Dalyell MP and a near instruction from the judge to convict, the jury returned a verdict of not guilty.13
The delay in broadcasting ‘MI5’s Official Secrets’ merely generated further publicity for it. Within hours of the IBA’s decision to stop transmission on 20 February, videos of the programme were being shown to journalists at a London hotel and to MPs at the House of Commons. Copies of the video were marketed by Richard Branson under the Virgin label with the title MI5’s Official Secrets – The Programme That Couldn’t Be Shown, and a lengthy extract from the script was published in the Guardian. On 6 March, the day after the announcement that there was to be no prosecution, the IBA lifted the ban on the programme, which was transmitted on the 8th. The government response to Cathy Massite
r’s televised charges against the Security Service was to ask the chairman of the Security Commission, Lord Bridge of Harwich, to investigate whether the Service had obtained the necessary warrants for telechecks and whether the criteria for phone tapping were being complied with. The investigation, like the rest of the Massiter affair, was a public relations disaster. Lord Bridge began his inquiry on 28 February and, despite sitting as a judge in the House of Lords for two days during the inquiry, reported on 6 March that all was well and that there had been no wrongdoing by either government or Security Service. In view of the fact that 6,129 HOWs had been issued over the previous fifteen years, the speed of his conclusion that the regulations were being fully observed inspired widespread scepticism. The Daily Telegraph described Lord Bridge’s report as ‘hasty and bland’, ‘the Bench’s answer to fast food, a juridical Big Mac’. The former Home Secretary Roy Jenkins said that Lord Bridge had been made to appear a ‘poodle of the executive’.14
Many Opposition MPs believed that the Security Service had become a political tool of the right. Gerald Kaufman charged in the Commons on 12 March that MI5 had ‘deliberately and wrongfully classified Joan Ruddock, the chairman of CND, as a subversive so that they could open a file on her’ – the first time a shadow Home Secretary had ever made so serious a public charge against the Security Service. The charge, to which the government made no substantive response, was mistaken. What concerned the Service was not an erroneous belief that Ruddock was subversive but her meetings with a Soviet journalist who, though she did not know it, was a KGB officer.15 Some Labour backbenchers made even fiercer criticisms than Kaufman. David Winnick thought it ‘quite likely that MI5 is out of control’, while Ian Mikardo claimed that Britain was ‘catching up fast’ with the Soviet Union in its use of state repression.16 Mikardo’s charges of Soviet-style repression were particularly ironic in view of intelligence from Gordievsky that prior to 1967 he had been a Soviet agent.17
Sir Antony Duff, who became DG soon after the passage of the Interception of Communications Act, became convinced that further legislation was needed. Though telephone and postal interception were legislated for under the Act, other eavesdropping had been omitted because any mention of it was thought too politically sensitive by the government. Mrs Thatcher and some of her ministers initially ‘took the view, not altogether surprisingly, that setting out to legislate to allow the secret state to break into people’s property for the purpose of planting microphones to overhear their conversations would cause a terrible furore and do the government no good at all’. Following the extensive publicity given to Peter Wright’s boast in Spycatcher that ‘we bugged and burgled our way across London at the state’s bequest, while pompous, bowler-hatted civil servants looked the other way’, Stella Rimington recalls that Duff suspended operations which required ‘intrusion on property’: ‘The result was a sudden loss of intelligence, just at a time when terrorist and other hostile activity was at its peak.’18 In fact, existing eavesdropping operations continued but it became more difficult, and often required several months, to obtain Home Office approval for further operations. Duff used the legal uncertainties over eavesdropping to press the case for a Security Service Act to provide a statutory basis for the Service itself as well as for its intrusions on property.19
The case for a Security Service Act was further strengthened by the judgment of the European Court of Human Rights in the case brought by Torsten Leander, a Swedish Marxist who had been sacked from the Karlskrona Naval Museum in 1979. Because the Museum was next to a large naval base, the Swedish security police, the Säpo, concluded that Leander was a security risk and informed his employer. The Säpo was cleared of any wrongdoing under Articles 8 (respect of privacy) and 10 (freedom of conscience) of the Human Rights Convention. The Court found greater difficulty in deciding whether there had been a breach of Leander’s rights under Article 13 (denial of an effective remedy), since he had no means of redress under Swedish law. In March 1987, it decided by seven votes to five that there had been no transgression. The Court, however, concluded in its summing up:
The expression ‘in accordance with the law’ in paragraph 2 of Article 8 requires, to begin with, that the interference [with human rights] must have some basis in domestic law. Compliance with domestic law, however, does not suffice: the law in question must be accessible to the individual concerned and its consequences for him must also be foreseeable (see, mutatis mutandis, the Malone judgment of 2 August 1984 . . . ).20
All security services were thus held to require a statutory basis, failing which the Court would not recognize the state’s power to violate citizens’ personal privacy in the interests of national security. The law regulating the work of security services had to be ‘sufficiently clear in its terms to give an adequate indication as to the circumstances in which and the conditions on which the public authorities are empowered to resort to this kind of secret and potentially dangerous interference with private life’. Citizens must also have ‘adequate protection against arbitrary interference’:21 ‘In view of the risk that a system of secret surveillance for the protection of national security poses of undermining or even destroying democracy on the ground of defending it, the Court must be satisfied that there exist adequate and effective guarantees against abuse.’22
Though the Leander case made a deep impression on the Security Service’s Legal Adviser Bernard Sheldon and his team, it was little noticed by the media and most politicians. By contrast, the prolonged litigation deriving from the government’s misjudged attempts to prevent the publication of Peter Wright’s memoirs made front-page news. Wright had retired in 1976 embittered both by resentment over the fact that his pension took no account of his fifteen years’ employment by the Admiralty before joining the Security Service and by the fact that his conspiracy theories of Soviet penetration were no longer treated seriously. Short of working capital for the stud farm in Tasmania to which he had retired, Wright wrote to his friend, the wartime MI5 officer Lord (Victor) Rothschild, who warned the DG that Wright was thinking of writing his memoirs. He wrote again to Rothschild in 1980, telling him that he had thought of a way of publishing and avoiding prosecution:
It is not the Official Secrets Act that concerns me. With all the books written it would be very difficult to make it stick. But I was made to sign a document when I retired, never to disclose anything I knew as a result of my employment, whether classified or not. I can avoid action against me by staying in Australia and never returning to my beloved England.
Instead of dissuading Wright, Rothschild encouraged him. Though his motives remain difficult to fathom, they included a desire for a written statement by Wright exonerating him and his wife from whispered rumours that they had been Soviet spies. He may also have concluded that public revelation of the sensational charges against Sir Roger Hollis, of whose innocence he had no doubt, would distract attention from the innuendoes accusing him of involvement with the KGB, with which he had become obsessed. In August 1980, without telling the Security Service, Rothschild sent Wright a return air ticket from Tasmania to London. He arrived bearing a three-page testimonial and a ten-chapter typescript on Soviet penetration dramatically entitled ‘The Cancer in our Midst’. Having devised a plan for a more readable version of the book to be produced by an author who would make no mention of Wright but share the proceeds with him, Rothschild introduced him to Britain’s best-known spy-writer, Chapman Pincher, who was amazed by Wright’s ‘willingness to tell me secrets for publication on a scale which I knew to be unprecedented in the entire history of the secret services’. The result, in March 1981, was Pincher’s rapidly written book, Their Trade is Treachery, devoted chiefly to the case against Hollis. As Rothschild’s biographer observes, ‘So little guilt did Victor feel in procuring that colossal breach of security that he continued to address letters to The Times deploring the steady leak of classified documents to the press.’23
Wright first informed the Security Service that he was writi
ng a memoir in June 1981 when he reported an approach by a British writer seeking information on Hollis and Blunt. He said that he had told the writer that ‘for my own satisfaction and for the record, I am writing an accurate history of what happened but that it would not be published in my lifetime’.24 Wright failed to mention, however, that he had already secretly collaborated with Pincher on Their Trade is Treachery. Director B (John Allen) replied with what was intended as an ‘unambiguous letter of warning’: ‘To avoid any uncertainty, I must tell you that your obligation not to make such a record, whether for publication or not, remains unchanged. I have little doubt that the authorities here would respond to a breach of your obligation by invoking any available remedy, under civil as well as criminal law.’25
On 16 July 1984 Wright appeared in a Granada World in Action television documentary on MI5 and for the first time made public his allegations that Hollis was a Soviet spy. Press reports revealed that he was writing a book, eventually entitled Spycatcher; his ghost-writer was to be the World in Action producer Paul Greengrass. Sir Robert Armstrong sent an outraged letter to the DG, Sir John Jones, written in his usual elegant hand: