THE MUCH MORE relaxed and open relationship which exists nowadays between ministers and MI5 is based more than anything on the adequacy of the law which governs MI5’s activities, the Security Service Act of 1989. Rather ironically, that is something for which we have Peter Wright to thank. He described in Spycatcher what he and his colleagues got up to in London in the 1960s and ’70s in the following terms: ‘And we did have fun. For five years we bugged and burgled our way across London at the State’s behest, while pompous bowler-hatted civil servants in Whitehall pretended to look the other way.’ He was describing in dramatic terms what has to be done to carry out eavesdropping and search operations.
To eavesdrop effectively it is obviously important to plant the microphones where they will have the best chance of picking up the targeted conversations and also where they will not be discovered, and that is usually somewhere inside the premises where you expect the conversations to take place. Such operations were carried out long before 1989 and though in those days they were carefully controlled and scrutinised for the appropriateness of the targets and though judgements were made about the balance of risk and reward, and though they were known about and tacitly approved of in Whitehall, the fact remains that those operations had no explicit statutory basis.
When, in 1985, telephone and mail interception had been legislated for under the Interception of Communications Act (IOCA), it had been thought too politically sensitive to legislate for eavesdropping. So although after 1985 the interception of communications on public systems, telephone and the mail, was surrounded by legally based regulatory checks, eavesdropping on private conversations went on as before.
The fact that it had been thought too difficult to legislate for entry into private property did not deter Sir Antony Duff. He took the view that the ambivalent position under which MI5 conducted operations, which were accepted as necessary for the effective protection of the state and were tacitly approved by its political masters, but which were not covered by statute, was totally unsatisfactory. Once the position had been highlighted in Peter Wright’s book, he was unwilling to continue to carry out such operations, and those which required entry to property were suspended. The result of that was a sudden loss of intelligence, just at a time when terrorist and other hostile activity was at a peak.
So discussions were set in train in Whitehall which eventually, after Sir Antony had retired, led to the passing through Parliament of the Security Service Act of 1989. Contrary to the way it is sometimes presented, it was MI5 who were very keen to have legislation, so that they could get on with the work they had to do and some members of the government who were very much less keen. Some ministers, including at first Mrs Thatcher, 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. However, they were persuaded that it was necessary to have the power, and if there was to be the power, there must be legislation. Article 8 of the European Convention set out the right of everyone to respect for his private and family life, his home and his correspondence. And it went on to say:
‘there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
By the mid-1980s, case law under the European Convention had recognised that a state may set up a security service to provide a covert response to covertly organised threats; but the state must put its security service on a clear legal basis and there must be adequate and effective guarantees against abuse including a means for the citizens to complain and seek redress. Without a law in place to take account of these points, our arrangements in this country appeared to fall foul of the European Convention. So ministers agreed to bite the bullet and legislate, both to put the Security Service on a statutory footing and to provide the power to enter property.
When the idea that we should press ministers for legislation was first proposed, I was very uncertain about it. I was not at all confident that government would be robust enough to legislate to give us the powers we needed and I was afraid that instead, the result of pushing them might be that we would permanently lose a source of vital intelligence. This seemed to me a crucial issue and quite unasked I produced a paper for the first Directors’ meeting after the idea had been mooted, setting out the pros and cons and concluding that the arguments came down, just, in favour of the cons.
In those days it was not at all usual to have papers for Directors’ meetings. The idea that important policy issues should be debated in an open way was new. Under the old regime, either there were no policy issues, because change was avoided, or those at the top decided everything without discussion. After we had discussed it and I had thought more, I changed my mind and became persuaded that the status quo could not last, and if we did nothing, we would lose the powers anyway. So I then became an enthusiast for the legislation and I sat on a small Working Group, which worked very closely with Home Office civil servants to draft the Bill.
Once it had been decided to legislate, it was clear that the law must do much more than provide the power to eavesdrop. The new law had effectively to replace the old Maxwell Fyfe Directive, under which the Service had worked since 1952, and in doing so it must define the entire task of the Service and at the same time provide the ‘adequate and effective guarantees against abuse’, which the European Convention required, for all its activities. The draft Bill which we proposed, suitably worked on and smartened up by the parliamentary draughtsmen, was piloted through Parliament by Home Office ministers. The timing of its introduction to the House of Commons was carefully planned. It came in the wake of a revision of the Official Secrets Act, which was focused on by the press and those who took a close interest in civil liberties. So when the Security Service Act came along, many of the natural opponents of such legislation had shot their bolts against the Official Secrets Act, with the result that the Security Service Act had a much smoother ride than might have been expected.
What the Act did not contain, among the various ministerial and judicial oversights it provided, was a parliamentary oversight committee. We thought hard about this and Parliament debated whether it should, but ministers, civil servants and some in the Security Service all felt that would be a step too far at that stage, though it was not ruled out for ever. The opportunity was taken to introduce such a committee in 1994 when MI6 and GCHQ were legislated for in the same way.
Since the passing of the Security Service Act, I have several times been asked by colleagues in other countries to explain to their ministers and oversight committees why it is so important for modern security services to have the power covertly to enter private property. If it was difficult for the UK government to bring in legislation to grant such a power, with the level of the terrorist threat that existed at the time in this country, it was much more difficult for countries where there was apparently very little or no such threat. But terrorists strike against their targets where they perceive the defences are weak. US embassies have been attacked in Africa, British citizens have been kidnapped in India, British diplomats and soldiers have been murdered in mainland Europe. Effective counter-terrorism requires international cooperation, including the provision of adequate powers for security services and police. The important thing is not the provision of powers but that their use should be properly controlled.
That argument cut no ice with the Norwegians, when I made it to their oversight committee in the early 1990s, and as far as I know they still do not have the authority to eavesdrop. In February 1999, I was asked to answer questions from the New Zealand Intelligence Oversight Committee, who were considering legislating to give their security service such powers. The New Zealand security service had, in fact, thought that it had such powers and only when their legislation was challenged in the courts was it discovered that they did not. The hearings in New Zealand were in public, and it was clear what strong emotions are raised by giving to a state body the power to, as it was put ‘enter our homes and listen to our conversations’. As someone said in evidence to the Committee, ‘While the state imprisons people for breaking and entering, it has the audacity to legislate that it is all right for the secret service to commit such crimes under the pretext of protecting its citizens.’ Those strongly held views do not weaken the case for having such powers, but they do serve to emphasise the care which must be taken in using them.
There was considerable relief, not only in MI5 but also in Whitehall when the Act finally got its Royal Assent. Antony Duff had retired by then, and his successor Patrick Walker invited all the ministers who had steered the legislation through Parliament, including the Prime Minister and the Lord Chancellor, to a party in our Gower Street Headquarters, to celebrate.
This was the first time I had had a chance to observe Mrs Thatcher at close quarters. Though I had met her when she visited the Service, as she did from time to time, those occasions had been very stage-managed, and there had not been much opportunity for anything other than formal presentations. Those were the days when the Service was still very careful indeed what it said to ministers and anyone who was to make a presentation at a ministerial visit, let alone a Prime Ministerial visit, had to rehearse it in front of their Director. In fact, Mrs Thatcher’s first visit to the Service had gone down in the memories of all those present, not because anyone fluffed their lines or got their facts wrong, but because her whisky was not mixed to the right strength. Apparently she was presented with a glass containing a gold liquid which was very pale indeed. She promptly returned it, demanding something much stronger, much to the embarrassment of those who had spent hours trying to get the occasion perfect but had forgotten to establish the facts of this vital detail.
By the time of the legislation party I was the Director in charge of Counter-terrorism. It was the period when the Provisional IRA was actively trying to kill British servicemen in Germany and my colleagues and I were closely involved in trying to thwart their operations, to identify the terrorists and to get them arrested. Just the night before, there had been an incident at a military base in Germany where the terrorists had been disturbed by a night-watchman while they were setting their bomb, and had fled before detonating it. I was well briefed on what had happened. But before I could open my mouth, the Prime Minister told me all about it at some length and with some intensity, fixing her eyes on a point somewhere over my right shoulder. I recognised points from the briefing note we had sent down to No. 10 earlier that day, but she had got some of the details wrong. For an instant I wondered whether I should correct her story, but it only took me that split second to decide that would not be wise. I am sure that was not the only occasion when cowards like me allowed her to remain misinformed.
Much had happened in the years before the legislation to change the culture of MI5. The recruitment of younger, more open-minded people from varied backgrounds, the increase in the number of women and the gradual abolition of the taboos on what they could do, the crises which had produced a much more open management style – all these influences had begun to lift the veil behind which our predecessors had hidden us and which for years had separated us from the outside world. The legislation had also set in train a course of events with a most profound effect on my own life, in that it led to the formal announcement of my name when three years later I was appointed Director-General. This pushed me into the public eye in a way that I neither expected nor was prepared for.
The first impact of the new law was that for the first time we were required to answer detailed questions from experienced lawyers about why we had reached the conclusions we had and why we had taken this or that action. These were the members of the Tribunal set up under the Act to take complaints from members of the public about anything which they thought MI5 had done to them or their property.
The first few visits of the Tribunal were tense occasions. Each side was sizing the other up. They knew nothing about us or the ethos of MI5 and did not know what unacceptable practices they might find or whether we were going to try to pull the wool over their eyes. We did not know whether they were open-minded, reasonable people or whether they would turn out to have preconceived ideas and axes to grind. Not surprisingly, they took their work very seriously. They asked for, and got, any files relevant to the complaint they were investigating, and spent a considerable time understanding what those unfamiliar papers meant. We, for our part, had to get used to the novel idea that the files, which recorded in detail what had gone on and why, files on which we had written notes and minutes, totally unaware that anyone outside the Service would ever read them, were now being scrutinised by outsiders, albeit within the ring of secrecy.
I welcomed this. We were confident in the integrity of our procedures, we were proud of what we had to show them. After their first visit, which lasted most of the day, we decided that these were indeed reasonable and sensible people and we resolved that the best way to deal with the situation was to embrace the oversight. We would arrange for them to tour the service. They should meet the ladies (and by then men as well), who worked in the Registry; the people who spent hours listening to and transcribing the often extremely crackly and blurred product of the microphones which had been installed under the new law; the desk officers who had to make the judgements about whether this or that person should have a file or be investigated. We would explain everything to them in detail, confident that if they understood the issues, they would, by and large, agree that what we had done had been appropriate. And on the whole they did. I think they were impressed with our willingness to discuss the issues and to open up frankly to their scrutiny. For our part, we had to learn to explain ourselves clearly to people whom we could not assume would necessarily think the same way as we did – and to serve dry sherry before lunch, which, we learned, is the approved drink of the Inns of Court.
In addition to the law, Antony Duff’s other great contribution was to secure Prime Ministerial backing for a new building for MI5. During his time as Director-General we occupied nine separate buildings in central London, of which the best known were Curzon Street House and the building at the top of Gower Street, above the Euston Square underground station, both now knocked down. Such a large number of separate buildings was grossly inefficient, to say nothing of the insecurity of regularly moving quantities of highly sensitive files and papers between buildings – this was before the days of computerisation. A fleet of vans drove in a continuous shuttle service from building to building several times a day, but very often when papers were needed urgently they were stuck in a traffic jam somewhere in Mayfair.
The regular shuttle service between Gower Street and Curzon Street did have the great advantage that without too much of a diversion it could pass by Marks & Spencer and staff could hitch a lift to do their shopping. It was seen as a great loss of privilege when, after a prolonged negotiation, Thames House on Millbank was acquired and after the move there was no shuttle service any more.
Tony Duff retired before many of the changes which he instigated had come to fruition, and it was left to his successors to bring them successfully home. He made a massive difference to the culture of the Service, which I was able to build on when I became Director-General and instituted a programme of greater openness. I had reason personally to be thankful to him for having recognised that I was capable of doing the most difficult jobs in the Service. And in particular for having promoted me to what I thought of as the best job in the world, Director of Counter-espionage in the final days of the Cold War.