THE SPYCATCHER SAGA, which would turn the British secret service inside out, began in 1983 in a phone booth in tiny Cygnet, an hour’s drive south of Hobart, when Paul Greengrass, a young English producer on a journalistic fishing expedition, cold-called Peter Wright, a former MI5 agent living in exile.
Wright had retired in 1976 after two decades at MI5, but was reportedly the confidential source of a 1981 book by Fleet Street journalist Chapman Pincher, Their Trade Is Treachery, which made the incredible allegation that Roger Hollis, the head of Britain’s domestic counterintelligence agency between 1956 and 1965, had been a Soviet spy. Prime minister Margaret Thatcher was forced to reject the allegation in a statement to the House of Commons. Wright and his wife, Lois, had lain low since, eking out their subsistence breeding horses on their 12-hectare Tasmanian farm, Duloe Arabians.1
Greengrass, who was freelancing for Granada’s long-running World in Action television program, wanted to interview the former spy. Wright, then sixty-eight, answered Greengrass’s request in a low voice: ‘You better come and have a drink.’2 The result was the documentary The Spy Who Never Was, which aired in Britain in July 1984. By speaking out for the first time, Wright hoped to trigger a review of Britain’s intelligence services. When Thatcher declined, refusing to reopen the Hollis case, he went further, threatening to release a highly sensitive 160-page dossier on the Soviet penetration of MI5—he even got the dossier to Thatcher, but she wouldn’t read it, instead handing it back to the civil service. The dossier would form the basis for a book by Wright. Greengrass, who agreed to help write it, came up with the title: Spycatcher.
The early 1980s under Thatcher and US president Ronald Reagan were dubbed the ‘second Cold War’. But Greengrass felt that since the British government had taken no action over Pincher’s book, and the thrust of Spycatcher was almost identical to Their Trade Is Treachery, there would not be too much fuss. ‘This was not some super-sleuth activity,’ Greengrass recently recalled.3 He had no idea the book would become a cause célèbre.
The first publisher, Hamish Hamilton, got cold feet, warned off by MI5, but Heinemann, which had recently been bought by Octopus Books chairman Paul Hamlyn, felt strongly about freedom of information and was determined to fight.4 Hamlyn was offered a knighthood—in exchange for dropping Spycatcher, it was rumoured—but he turned it down.5 It was obvious that the book could not be published in the UK. When he joined MI5, Wright had signed a declaration subjecting himself to an obligation of confidentiality under the Official Secrets Act. But the Act was unenforceable overseas. Wright was now an Australian citizen, and Heinemann reckoned its Australian arm would be free to publish his book. When word of this leaked into the British press, the UK attorney-general scrambled to get an injunction barring publication of the book in Australia, which Heinemann was surprised to receive at its tiny Sydney office. The plaintiff’s lawyers had made a mistake: Heinemann’s Australian headquarters were in Melbourne. Still, the very expensive legal advice of Heinemann’s big-name Melbourne lawyers was that the case was unwinnable. A new managing director, expat Sandy Grant, was hired in London and parachuted in to take over Heinemann Australia. When he arrived at the Melbourne head office, the legal bills had run to hundreds of thousands of dollars and Wright had only finished a quarter of a manuscript.6 It was a shambles.
Heinemann’s UK managing director, Brian Perman, shared his predicament with barrister Geoffrey Robertson, who had previously acted for the publisher. A theatrical version of their conversation is portrayed in a very entertaining script, ‘The Spycatcher Trials’, that was written in 1991 by Bob Ellis and Stephen Ramsey, with the collaboration and imprimatur of Malcolm Turnbull. The created scene is an upmarket London restaurant, and Perman’s wife, Jan, is there too:
Robertson: ‘I understand your problem.’ Perman: ‘I’m unsurprised by this.’
Robertson: ‘Given that you have … a case that you may not win, and a situation unprecedented in law, what you need, in my view (he starts to butter a bread roll), is the equivalent, riding over the hill on an aged palamino, a Colt 45 at his hip (Perman is unamused by this, Jan half-smiling), his faithful servant Tonto at his side, of the Lone Ranger. A gun for cheap hire. I believe I know of such a man.’
Jan: ‘Oh stop fantasising, Geoffrey. I know that’s what the Australian television people pay you for …’
Robertson: (enjoying his hypothesis) ‘Aggressive, feisty, brimming with … chutzpah. Acquainted with England, a Rhodes scholar …’
Jan: (warning tone) ‘Geoffrey, you’re being mischievous.’
Robertson: ‘No, I’m not. I believe I know of such a man (Perman is looking at him very coolly). I shall finish my drink. And make a phone call.’7
So flattering to Turnbull! Robertson’s call, of course, was to Turnbull, who had just set up his own law firm with long-time friend Bruce McWilliam, one of the advisers at Allen Allen & Hemsley who had worked on Kerry Packer’s account. Turnbull later wrote that defending the media mogul against the Goanna allegations had alienated him somewhat from the rest of the profession:
My efforts on Kerry Packer’s behalf certainly made me notorious. I became very unpopular with my former colleagues at the bar who resented my use of the media to defend a client. So I became a solicitor. The rules regarding solicitors’ practice were much more liberal than those regulating barristers. I had no dislike for the bar, but I knew that the sort of work I was doing could not be done by a barrister. However I also wanted to establish a reputation as a good lawyer, not simply as Kerry Packer’s lawyer. So we set up Turnbull McWilliam with a view to attracting other clients and broadening both our client base and our expertise.8
The new law firm set up in offices they’d bought at 60 Park Street—right next door to Packer, who would remain a key client. Turnbull opened shop in the first week of January 1986 while the rest of Sydney was at the beach. He was relieved to get the call from Robertson and take on his first new client.
The book that Turnbull had agreed to defend was a miserable read then, and is more so now.
Wright was the son of an electrical engineer, Maurice, who pioneered the interception of long-range wireless signals during World War I and rose to become head of research for Marconi, working closely with Britain’s overseas spy network MI6. Born in 1916, young Peter, who had a chronic stutter and would later suffer rickets and wear leg-irons, loved most of all to hang around with his father in the Marconi labs. He was pulled out of school early, during the 1930s when his father was retrenched and fell into alcoholism. The family did it tough in those years. Early on in Spycatcher, Wright reflects:
Years later, when I began to search out for MI5 the well-born Englishmen who had become addicted to communism in the 1930s, this period of my life began to fascinate me. They had enjoyed to the full the privileged background and education denied to me, while my family had suffered at the capricious hand of capitalism. I experienced at first hand the effects of slump and depression, yet it was they who turned to espionage. I became the hunter, and they the hunted.9
Spycatcher is suffused with loathing for the left-wing, homosexual Oxbridge elite who, in Wright’s view, betrayed England during the Cold War—most particularly, the infamous Cambridge Five spy ring: Guy Burgess and Donald Maclean (who defected to Russia in 1951), the ‘third man’ Kim Philby (defected 1963), the fourth man Anthony Blunt (confessed in 1979) and the mysterious fifth man, eventually identified as John Cairncross. England reeled from this string of spy scandals, the stuff of blockbuster novels written by the likes of John le Carré.
Wright was a signals boffin, just like his father, and served in the Admiralty Research Laboratory in World War II. At the end of the war, he joint-topped the Scientific Civil Service competition and was soon recruited to become MI5’s first scientist, joining in 1955. He was proud to continue ‘the thread of secret intelligence which had run through the family for four and a half decades’.10 But there was a clincher: the secret service had a no-poaching agreement with the rest of the civil service. Wright would have to resign from the navy, losing some fifteen years of accumulated pension entitlements. MI5 promised the difference would be made up to him, but it was a verbal agreement; nothing could be put in writing.
Spycatcher tracks Wright’s descent into paranoia inside MI5. Despairing as Philby was cleared prematurely by then foreign minister Harold Macmillan in 1955, Wright bemoaned the whitewash: ‘I had joined the Looking Glass world, where simple but unpalatable truths were wished away. It was a pattern which was to be repeated time and time again over the next twenty years.’11 As his mole-hunts deepened, Wright lamented that ‘unlike any other crime, espionage leaves no trace, and proof is virtually impossible unless a spy confesses or is caught in the act’.12 The wilderness of mirrors was fertile ground for an obsessive. Wright would snatch defeat from the jaws of victory: he took a dim view of his own successful counter-espionage operation, which saw three Russian spies brought before the English courts, believing there were inconsistencies that could only be explained by a leak from inside MI5. Wright’s superiors were baffled at his downbeat analysis, and his constant assumption that the Russians knew whatever MI5 was up to, telling him: ‘They’re not ten feet tall you know Peter!’13
There was more to Spycatcher than Wright’s obsession with Soviet penetration and his suspicions about Roger Hollis—who had died in 1973—but not much more. Most substantial, perhaps, was supposed confirmation that a group of up to thirty agents within MI5 had plotted to destroy former Labour prime minister Harold Wilson, who they suspected was a Soviet agent. As Wright explained after the book was published, the real number of agents in on the plot, other than Wright himself, was one.14 But it had been serious enough to rattle Wilson, who later complained of a string of unsolved break-ins at his home and office towards the end of his prime ministership.15 In 1976 he went so far as to write, covertly, to then CIA director George Bush asking whether he knew anything about MI5 officers plotting against him. Bush flew to London to see Wilson and assured him that if he had been under surveillance, it was not at the behest of the CIA.16
Spycatcher also revealed how, during the 1956 Suez Crisis when Israel invaded Egypt with the support of France and Britain, then British PM Anthony Eden had approved an MI6 plan to assassinate Egyptian president Gamal Abdel Nassar, at first using nerve gas and then renegade Egyptian officers. As was typical of MI6, the plans were bungled.
In a quote that was republished endlessly, Wright confessed in Spycatcher that in his early years at MI5 he had fun, breaking the law at will as the Cold War counter-espionage effort ramped up: ‘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.’17
Most resonant today are Wright’s reflections on the trend—beginning in the 1970s—for counterintelligence to rely less on secret agents and more on computer surveillance, and the associated shift from fighting the Russians to spying on the British population at large. In 1972, conservative PM Ted Heath made it clear to new MI5 director Michael Hanley, to whom Wright reported directly, that the ‘far and wide left’ should be targeted, from unions to socialist splinter groups to the campaign for nuclear disarmament. MI5 wanted a relaxation of the restrictions governing the use of telephone taps and letter intercepts, a closer relationship with the Post Office, and a direct computer linkage with National Insurance.
The enemy was diffuse, and its communications so widespread, that this was the only way they could get to grips with the problem … agent running was no longer viable as the principal means of coverage … the only answer was to use massive technical resources.18
Which was prescient, in a way, given Edward Snowden’s latter-day revelations of mass surveillance in the West, including through Britain’s Government Communications Headquarters. Only now can we see how well the spooks succeeded. Wright’s problem with all this was not the infringement of civil liberties—scruples about privacy or democracy make no appearance in Spycatcher—but the implications for his own career:
I was not alone among the old guard, anti-Soviet officers in being disturbed by these new developments. We could see all that we had worked to achieve frittered away chasing these minor left-wing groupings. But more than that, the move into the computer generation signalled the relegation of the role of the individual officer. From now on we would be data processors, scanning tens of thousands of names at the press of a button.19
Wright argued for infiltration over surveillance, pushing the value of agents. It was a losing battle. The ‘fun’ was gone. Wright was on his way out, and more than anything, Spycatcher was the memoir of a has-been. It was also a grudge book: over and over, the question of Wright’s old navy pension is raised, and when he finally finds out in 1972 that the original promise will not be honoured—‘in the new, gray MI5 a gentleman’s agreement was a thing of the past’—Wright describes it as a ‘bitter blow [that] did much to sour my last few years in the Service’.20 As he neared retirement in 1976, it was only for fear of losing what pension entitlements he had left that Wright baulked at letting loose the MI5 files on Wilson. Was Wright’s beef justified? Dame Stella Rimington, who was involved in preparing MI5 briefings for the case and was later the first woman to run the spy agency (she also published her own memoir, Open Secret), says the government went over Wright’s pension entitlements three times to check they were not ‘doing him down’. Each time, the result was the same: Wright had been treated fairly.21
Turnbull was hardly enamoured of Wright’s manuscript himself, writing only that he was ‘very struck by the datedness of the material in the book’ and had no doubt that, if it had been published without fanfare in early 1986, it would have sold about 50 000 copies worldwide. Wright told Turnbull that the difference between Spycatcher and Their Trade Is Treachery was that Pincher downplayed Soviet penetration of MI5, as if it were a thing of the past. That might suit the government, but Wright was sure it was wrong: ‘That’s the whole point. Hollis is dead now, but what about the people he appointed and groomed to succeed him? The system is no better now than it was then. It needs reform root and branch’.22
Turnbull may not have thought much of Wright’s book, but he liked his chances with Heinemann’s case, believing it strong enough that the British would surely settle, if given the opportunity to vet the manuscript and remove any sensitive material. There were three key grounds for Heinemann’s defence. First, the book disclosed evidence of criminal activities by MI5, and in Turnbull’s view it was beyond the jurisdiction of an Australian court to suppress the publication of evidence of criminality overseas. Second, if MI5 was penetrated by the Russians in the way Wright thought it was, what possible harm could be caused by the publication of the book? Third, and most important, much of the information in the book had already been published, so it could no longer be considered confidential and worthy of protection.
It was enough for Heinemann to press their case, but in the end Turnbull underestimated the determination of the British government—and Margaret Thatcher in particular—to stop publication at any cost. Despite repeated attempts at a compromise, there would be no settlement. Haughty UK Treasury solicitor John Bailey dismissed Turnbull’s earnest offer with a patronising relish, as though the government was certain to wipe the floor with the Australians: ‘Well, well, young man, we’ll see what you’re like on your feet, won’t we?’23 It only added more fuel to the patriotic fire in Turnbull’s belly.
It was a David and Goliath struggle—although, Goliath had picked a fight on David’s turf. Appeals from Australia’s High Court to the UK’s Privy Council had finally been abolished by the Hawke government in 1986, only months earlier, so there was no way for the British government to bring the Spycatcher case to the UK.
Right from the start, the British mishandled the case. Filing in the wrong jurisdiction—NSW rather than Victoria—may have been a simple administrative error, but this was soon compounded by pleadings that admitted, for legal argument’s sake, that everything in Wright’s manuscript was true. There was a kind of logic here, as the government did not want to get drawn into identifying which bits of the book were true and false. But the British media pounced on the admission, and soon questions were being raised in parliament: If Wright was right, hadn’t Thatcher misled the parliament back in 1981 when she denied the allegations against Hollis? Thatcher was forced to try and explain that it was a technical, tactical admission only. It was awkward, and a poor omen for the looming trial.24
Then there was the question of who would represent England in the case. Attorney-general Michael Havers was rejected: although he was the plaintiff, it was deemed unwise to send a politician. The director-general of the security service couldn’t go—officially, he didn’t exist. So it was a choice between Home Office secretary Sir Brian Cubbon and secretary of Cabinet Sir Robert Armstrong, Whitehall’s most senior civil servant. As Sir Robert, now Lord Armstrong, later recalled: ‘I had a long history of knowing about the matters that were under discussion, so Mrs Thatcher asked me if I would go—she didn’t instruct me—and it was the right decision.’25 So it would be Armstrong’s signature on the affidavits, and Armstrong who would trek out to Australia once the hearings began in November 1986. There may have been little alternative, but it was an extraordinary decision to allow Britain’s top mandarin to be grilled in open court on a highly sensitive national security case. Weeks of hearings were set down. There was feverish anticipation—almost every pre-trial skirmish made headlines on both sides of the Atlantic.
The British case was surprisingly weak: since the Official Secrets Act did not run in Australia, and Wright had no contractual relationship with his effectively non-existent former employer, the government had to argue Wright was subject to an obligation of confidentiality that sprung from common law and should be recognised in Australia just as much as in England. To establish a breach of the equitable doctrine of confidence—and therefore an entitlement to injunctive relief—required, first, that the information was confidential; second, that the information was communicated in a way that imparted an obligation of confidence; and third, that the information was then used to the detriment of the person communicating it. While there was no question Wright had originally been under an obligation of confidentiality as a government employee, the Spycatcher case turned on whether the information in his manuscript still could be considered confidential, given everything else already in the public domain. In truth, there wasn’t that much law in it.
Despite the qualms of the publisher, which was worried about undermining the book’s sales, Turnbull argued successfully that most of what was contained in Spycatcher was indeed old hat. Just as importantly, Turnbull was able to show that much of what had previously been published had been done so with the knowledge and even tacit support of the British government, posing the question of whether the plaintiff brought ‘clean hands’ to the case—a key concept in the law of equity. It was during this argument, while Turnbull was cross-examining Sir Robert, that one of the most celebrated exchanges of the case occurred. Turnbull took Armstrong to a carefully worded letter Armstrong had written to the publishers of Their Trade Is Treachery—after extracts had been published in the newspapers, and just days prior to the book’s publication—requesting an advance copy so Thatcher could be briefed to make a statement in the House of Commons. There was no other way to read the letter but that the government did not have a copy of the book and was anxious to get one. Yet behind the scenes, a few weeks earlier, the government had obtained a galley proof and had already combed through the manuscript in detail.
Turnbull: ‘You went further than you needed to go to get a copy of the book. You conveyed … the clear impression that you did not already have a copy of the book, did you not?’
Armstrong: ‘Yes, I did, because I was wishing to protect the confidentiality of the source from which we had obtained it.’
Turnbull: ‘And that impression was not a true impression, was it?’ Armstrong: ‘Well, clearly we had a copy of the book.’ Turnbull: ‘So it contains a lie?’
Armstrong: ‘It was a misleading impression. It does not contain a lie, I don’t think.’
Turnbull: ‘What is the difference between a misleading impression and a lie?’
Armstrong: ‘A lie is a straight untruth.’
Turnbull: ‘What is a misleading impression—a sort of bent untruth?’
Armstrong: ‘As one person said, it is perhaps being economical with the truth.’26
It was a stunning admission from Britain’s most senior public servant. As Turnbull later recalled:
You could’ve heard a pin drop when he said that. Obviously he was embarrassed when he made what he thought was a joke. The reality is you’re sitting there in the witness box and you’ve taken an oath to tell the truth. Joking about telling the truth in a court of justice is guaranteed to fall flat, and it certainly did.27
Armstrong’s off-the-cuff comment ricocheted around the world, no matter that the phrase had a fine pedigree, being adapted from conservative philosopher Edmund Burke. The British press went berserk: cartoons depicted him as the ‘naked civil servant’, and as a wombat on a spit, being roasted in a ‘grand Aussie BBQ’. As the Sunday Times wrote, the British had severely underestimated Turnbull, assuming he was a brash Aussie colonial: ‘In fact, Turnbull was a Rhodes scholar at Oxford and since setting up his practice in Sydney has emerged as one of the country’s sharpest lawyers, able to switch instantly in court from complex legal theorising to savage cross-examination of witnesses.’28 The New York Times noted in passing one British commentator’s lament at the ‘vulgar public grilling’ of Armstrong, but there was no doubt who was winning.29
For all the flying sparks and verbal jousting during the hearings, it was arguably outside the courtroom that Turnbull did his best work on the Spycatcher case. With the British government arguing it had had no basis on which it could have sought an injunction to restrain publication of Their Trade Is Treachery in England in 1981, despite its obvious sensitivity, Turnbull rang Labour opposition leader Neil Kinnock to urge him to pressure Michael Havers in the House of Commons. Despite some misgivings, including a severe lack of empathy for Wright, whom he believed to be a far-right loony, Kinnock was persuaded by the young Australian lawyer. The next day, he posed a question to prime minister Thatcher:
Kinnock: ‘Is it not obvious that any government who had foreknowledge that information prejudicial to national security was to be published would have absolutely no difficulty obtaining an injunction against its publication? Can the prime minister tell us precisely why she accepted that decision not to seek an injunction to prevent publication of Mr Chapman Pincher’s book, which was obviously prejudicial to national security?’
Thatcher: ‘Proceedings continue in the Supreme Court of NSW. Particularly as the government are the plaintiff in the case in Australia, it would be inappropriate for me to comment.’30
This was a pat form of words that only showed the fragility of the government’s position. Thatcher had previously tried to argue in the House that Spycatcher was sub judice, only to be overruled—embarrassingly—by the speaker, who pointed out the rule did not apply to a foreign case.31 The government’s fallback was to cite the ongoing case and invoke national security. The truth was, the British government had no answer at all to the charge that there was a glaring inconsistency between their treatment of Wright’s book and previous publications, including Their Trade Is Treachery, Pincher’s sequel Too Secret Too Long, Greengrass’s documentary The Spy Who Never Was, conservative MP Nigel West’s MI5’s Official Secrets, and Barrie Penrose and Simon Freeman’s Conspiracy of Silence.
Turnbull’s phones were being tapped by British spies, as he assumed was likely, and his conversation with Kinnock caused another furore: Kinnock was accused of breaching the convention of bipartisanship on national security, and all but colluding with the enemy.
The British government decided to play hardball and leaked a story attacking Wright’s credibility, portraying him as venal based on his sworn evidence that he had been paid for supplying the confidential information in Their Trade Is Treachery. Rather than waiting until Wright appeared in court, Turnbull staged a press conference in Sydney, with all the travelling British media present. Wright dropped a bombshell: yes, he had been paid—by his one-time mentor, establishment figure Lord Victor Rothschild, who had flown him first-class to London in 1980 and offered to pay Wright half of Pincher’s royalties, out of a Swiss bank account. Rothschild, who was close to the intelligence agencies, feared he would come under suspicion of being the ‘fifth man’ in the wake of Anthony Blunt’s confession, and had an interest in getting the Hollis story out. As Wright told the media:
I sensed I was being drawn into an authorised but deniable operation which would enable the Hollis affair and other MI5 scandals to be placed in the public domain as the result of an apparently inspired leak. All I know about Lord Rothschild and the ease with which Their Trade Is Treachery was published, leads me to the inescapable conclusion that the powers that be approved of the book.32
The British peer was impeccably connected—all the way up to Thatcher. Suddenly, the British media had a bigger traitor than Wright to go after. Thatcher was forced to put out a one-line statement that there was no evidence Rothschild had ever been a Soviet spy.
The worldwide attention was generating priceless publicity for Wright’s book. Turnbull was brazen: at one point, after a tough day in court, Sir Robert and the British consul-general went out for dinner at Kinselas, only to find Turnbull, Greengrass and the whole British media contingent together at the same place. Turnbull invited Armstrong to join them, but he thought better of it. After a round of introductions made necessary by ‘crippling English politeness’, Sir Robert walked off followed by ‘cheerful taunts’ from the wild colonial Turnbull.33
The all-out media tactics were natural for a former journo, but perhaps unusual for a lawyer. In Ellis and Ramsey’s ‘The Spycatcher Trials’, the Lucy Turnbull character cautions her husband over one of many dinners that the Spycatcher case ‘has to be won in court, Malcolm, in front of a judge’. The expansive Turnbull protagonist—who elsewhere admits ‘I’ve been told before that my future is in PR’—gives an interesting reply in the play:
[The case] can only be won in court with the momentum that a worldwide press coverage and a worldwide scrutiny gives it! (Lucy looks dispirited) Don’t you understand? This is the 1980s. Magna Carta, Habeas Corpus, twelve good men and true, is over. (Greengrass regards him watchfully) This is the next thing: and we’re testing it.34
Lucy had finished her law degree in 1981 but, having had Alex and Daisy in the intervening five years, had not yet been admitted to practice. Nevertheless, she played a significant part in the Spycatcher case, taking responsibility for the legal argument that Britain, in seeking to restrain Wright, was effectively trying to enforce its own laws in Australia. It was a highly technical area of international law, but the argument proved decisive when the case eventually reached the High Court, which baulked at the potential for embarrassment, and prejudice to international relations, were an Australian court to try and ‘balance the interests of foreign governments with the interests of our own’.35 As Turnbull wrote: ‘Lucy’s public international law had won the day!’36 The case set the pattern for their relationship, as much a successful professional partnership as a marriage. From Turnbull McWilliam, to Whitlam Turnbull, to Turnbull & Partners, from law to business and then into politics, Lucy and Malcolm would work side by side, and generally out of the same office.
In fact, the Spycatcher case was a real family affair for Turnbull. Alex, aged four, turned up to the trial wearing a London bobby’s hat and refused to take it off, to general mirth; Daisy, two, was so horrified by the severe courtroom she thought something terrible was going to happen to Mummy and was carried screaming out of the courtroom. Lucy’s godfather, retired judge Antony Larkins QC, also turned up to watch and snored loudly whenever the proceedings got boring—Turnbull knew to pick things up a bit when Larkins’ monocle fell out, the first sign he was about to nod off. Last but not least was Coral, Turnbull’s mum, who was visiting from the United States and ‘joined the defence team, though in a supporting capacity only … being a keen amateur student of courtroom tactics [she] was more than fascinated’.37 They were a motley cast: ‘The Spycatcher Trials’ has Malcolm, Lucy and the rest of the defence team arriving late on the first day of the trial, wheeling their documents into court in a shopping trolley. In real life, Wright, keen to avoid the sun, drew a lot of media attention for the big bush hat from R.M.Williams that Turnbull recommended he buy—it featured in all the camera work. But although it was seat-of-the-pants stuff, Turnbull seemed to thrive on the pressure of running his first big case. His courtroom manner was thought to owe a lot to American television—one London paper dubbed him ‘Robert Redford playing Perry Mason’.38 He even had some fun, recalling in his own account clowning around with Heinemann’s London lawyer David Hooper in late-night phone calls he knew were being tapped by the British secret service:
Hooper and I had numerous conversations about lines of cross-examination for Armstrong which were entirely fictitious:
‘Is that you Hoops?’
‘Absolutely, I have just come back from seeing Boris. He can’t get us any pictures, or any clear ones.’
‘How clear are they?’
‘Well, I don’t think you can be sure it is Armstrong. Boris says it’s Armstrong. Apart from the old Etonian tie on the door, there’s nothing to indicate it’s Armstrong.’
‘Can you see the mole?’
‘No, can’t pick that up. I’m just not sure it’s Sir Bob. Even though Boris is financing the case I don’t really trust Russians.’
‘Spending the bloody roubles is hard. How much vodka can a man drink …’ and so on. The quality of these conversations was not high, and generally demonstrated a lamentably ribald lack of respect for our opponents, because with an eleven-hour time difference between Sydney and London, they generally occurred late either in my night or Hooper’s night, and not infrequently after one of us had returned from dinner.39
Behind the scenes at MI5, they were struggling to feed information through to the government’s legal team.40 Thatcher leaned on prime minister Bob Hawke to intervene, amid reports that MI5 would otherwise curtail its relationship with ASIO. Hawke sent the secretary of his department, Mike Codd, into court to argue the Australian interest lay in restraint of publication. The trial judge, Philip Powell, was himself a former army intelligence officer, and he begged to differ. As it happened, it was Sir Roger Hollis who had been sent out to advise on the creation and staffing of ASIO in 1948, and Powell told the court that if Wright was right and Hollis was a mole, then ‘ASIO is a pack of cards and we will have to start again’.41 Turnbull responded by calling former Labor PM Gough Whitlam, who delighted in telling the court that Australia’s key intelligence interests lay far and away with the United States—our relationship with Britain was ‘smaller and diminishing’—and given that many of our regional neighbours were targets of British espionage operations, it was in our strategic interests to have any misdeeds exposed.42
All through the case there had been concerns about whether Wright’s health would hold up: the old man had diabetes and a heart condition, and he was drinking far too much alcohol—Sandy Grant recalls he had a walking stick that had a screw-top, with Scotch inside, and he would sip away during the court hearings. When Wright finally made it to the witness box, his evidence was surprisingly brief. One of the British government’s PR men, Ivor Roberts, said he thought it bizarre that so little effort went into breaking down Wright’s defence:
We were claiming he was giving away privileged information but there was no real attempt to nail him on that, and when the journalists asked me afterwards ‘What game are your team up to?’, I couldn’t answer them! I had no idea. Then afterwards I discovered that the attorney-general had heard that Wright was not in the most robust of health. He was, I think, terrified that he [Wright] was going to break down and have a heart attack or something if he was being rigorously cross-examined, and gave instructions to our team they must go very easy on him.43
Wright was certainly frail, and reliant on his wife, Lois, who accompanied him constantly. Once, when Lois had to leave as the hearings went in-camera, Wright got so agitated that the session had to be terminated: Wright said he couldn’t go on without her.
Justice Powell described himself as a ‘humble colonial judge’ but, like Turnbull, was not averse to a bit of Pommie-bashing. Right at the outset, when the first British attempt to shut down the case failed, he joked: ‘There goes my peerage.’ Along the way, Powell blasted the plaintiff’s ‘serpentine weavings’ and ‘tricky pleadings’.44 His judgment, when it came down in March 1987, gave the British government a bucketing. Powell was highly critical of Sir Robert’s evidence, which he said should be treated with considerable reserve:
Sir Robert Armstrong has been revealed as having rather less expertise in relation to security and intelligence matters than a cursory reading of his affidavits would otherwise have led one to believe; to which might be added that Sir Robert Armstrong’s knowledge of operational matters and matters relating to the technology of intelligence gathering appears to be virtually non-existent.45
His finding on the key issue came as no surprise:
[I]t can, in this case, be said of a great deal, if not of all, of the information contained in Mr Wright’s manuscript, not only, that it has previously been published, but that that prior publication has, at least in one case, been authorised, and, in other cases, has at least been acquiesced in … [and the failure of the British government] to restrain the intended publication or televising of such information as was disclosed in Their Trade Is Treachery; Too Secret Too Long; The Spy Who Never Was; MI5’s Official Secrets and Conspiracy of Silence cannot be categorised as other than an acquiescence in the publication, or televising, and, thus, as a surrender of any claim to the confidentiality, of that information.46
If the information was no longer confidential but had passed into the public domain, then the question of any detriment to the British government was ‘otiose’, but for good measure Justice Powell found there would be no detriment anyway. For example, the British had argued the intelligence relationship with the United States would be compromised. Powell, following Turnbull, showed there had been hundreds of books published by former CIA agents—they could not be stopped under the First Amendment to the US Constitution, which protects free speech—and that it was utterly implausible to suggest the CIA would censure MI5 in this case.47
Turnbull had beaten what he calls in the Ellis and Ramsey script the ‘velvet-arsed phalanxes of Eton wankers’.48 It was one in the eye for the Poms. Wright was by now in hospital back in Tasmania. A radio program recorded Turnbull calling him with the news: Spycatcher could be published within twenty-eight days. Wright confessed he was ‘delighted’.49
In a glowing television news profile of the victorious lawyer, shot on the wide balcony of his Double Bay home, Turnbull did his best not to gloat: ‘I hope I don’t exaggerate my abilities. By the same token, nobody would accuse me of hiding my light under a bushel.’50 The rather wide-eyed reporter had to admit:
There’s little he has to be humble about! At thirty-two, his credits are impressive. Impatient for everything in life, he’s done it all at full speed: a Rhodes scholar, journalist for papers, radio and television, all before settling committedly into law. Well connected in legal circles, Turnbull’s wife Lucy is the daughter of one of Sydney’s most respected figures, Tom Hughes QC. His most famous client would have to be Kerry Packer. He’s the father of two … In the Turnbull household, work and home life overlap. Lucy works on every case with Malcolm and over the five weeks of the MI5 hearing it left little time for anything else.51
The profile showed the Turnbulls happily lunching, Sydney Harbour glittering through the trees. Asked what the win would do for his career, Turnbull was honest: ‘I don’t know whether it will do a lot or a little. It’s not as though there’s a great line of business of espionage memoir cases! … Notoriety’s a funny thing: you’re the flavour of the month one month and the next month you’re totally forgotten.’52
The British government took its case to the Court of Appeal and to the High Court, but Powell’s ruling was upheld on both occasions. In mid 1987—a year before the High Court handed down its ruling—Spycatcher was published in the United States under a rights deal with Viking, and in Australia and New Zealand in October that year. It quickly sold 750 000 copies and went on to sell two million copies worldwide. The British government spent up to £3 million fighting the case, preventing publication of the book or excerpts from it in the United Kingdom, until ultimately the Law Lords ruled at the end of 1988 that although Wright had a lifelong obligation of confidentiality, the damage had been done and publication of Spycatcher should be allowed. By that time, in Heinemann’s view, there was no point because just about everybody in Britain had read it. Imported copies from the United States and Ireland (where the book was never banned) had been brought in by plane and sold by the roadside, or given away for nothing by booksellers along with expensive copies of remaindered tomes like the complete Histories of the Secretaries of State for Scotland between 1926–1976. People read passages from Spycatcher at Speakers’ Corner in London’s Hyde Park.
The ‘fall guy’ has been Armstrong. Paul Greengrass later said that ‘he felt bad for Robert and as the years went by that feeling never quite went away. I felt that he had been debagged in public and after a life of glorious public service that wasn’t what he deserved.’53 But although Armstrong had been embarrassed on the witness box—one newspaper compared him to a Spanish bull so wounded that everybody longed for his merciful dispatch—he arrived home to a grateful Margaret Thatcher, who gave him two bottles of whiskey. Unusually for a Cabinet secretary, Armstrong had both a long tenure at the top—eight years, a true Sir Humphrey Appleby—and a high public profile. In a recent article, academic Peter Hennessy compared the impact of the Spycatcher trial on Armstrong to the fall of Cardinal Thomas Wolsey under King Henry VIII, but then wrote that Armstrong ‘did not fall’.54
Lord Armstrong says Hennessy was exaggerating. The case did him no lasting damage with the PM or colleagues in the civil service, some of whom thought he should not have been asked to represent the government in the Sydney proceedings. In fact, it garnered him some sympathy and respect. Armstrong also says that Thatcher did not resile from her determination to pursue the case:
Mrs Thatcher thought that Spycatcher was a gross breach of the duty of confidentiality which Peter Wright owed as a former member of the security service. She was advised that it contained information which it was not in the public interest to disclose, and a good deal of fictional material. Wright was thought to be obsessive about allegations of Soviet penetration of the security service which had been investigated and found to be untrue: they were disruptively damaging to the service and distressing to the families of those who were traduced. There was reason to believe that, if no attempt was made to prevent publication of Spycatcher, other former and present members of the security service would feel free, and obliged, to publish books and articles to counter the material in Spycatcher which they considered to be false or unfair.55
Regarding Turnbull, Armstrong is less charitable. He admits Turnbull was doing his best for his client, and that he was quick and clever, hardworking and ambitious, but Armstrong also labels him very political and not overly scrupulous, particularly his attempts to put pressure on the government by communicating with the opposition in Westminster:
[I] still consider that his activities in seeking to influence public and political opinion in England were unprofessional. One of the English lawyers concerned with later proceedings in the English courts, having read the verbatim transcript of the proceedings in Sydney, said to me that no member of the English bar would have tried to conduct a case in an English court as Malcolm Turnbull conducted the case in Sydney, and that any barrister in an English court who tried to do so would have been stopped by the judge in thirty seconds.56
Armstrong says the phrase ‘economical with the truth’ was obiter dictum (said in passing): ‘The phrase was troublesome at the time, because of the play the journalists made with it; but the point is now understood.’57 He said much the same thing to the BBC:
I’ve done some research on being economical with the truth since that time and it has a very long and respectable tradition going back to St Augustine of Hippo … so though that phrase has been hung around my neck—it’s got me a quotation in the Oxford Dictionary of Quotations, which is alright—I’ve found that if I’m talking to a group in public, if in the first minute I say I must be careful not to be economical with the truth, I get a laugh, and I have the audience on my side for the rest of the time.58
Turnbull’s character in the Ellis and Ramsay screenplay of the trial proffers that Armstrong was simply ‘being British in the wrong country’. Former MI5 director-general Stella Rimington explained that while morale plummeted at first, and the allegations against Hollis were all ‘eyewash’, the Spycatcher saga taught Britain’s spy agencies a lot—they were quickly put on a proper legislative footing with the passage of the Security Services Act of 1989. In 2009 the official historian of MI5 described Wright as a ‘tremendous fraud’.59
Paul Greengrass came to regret aspects of his role in the Spycatcher tale, as it fed the paranoia that led to a form of McCarthyism—one of the allegations made against Wright—or even reverse McCarthysim as members of the security services were brought under suspicion: ‘I think that in retrospect I began to feel that it was not particularly edifying the way that we of the fourth estate went around calling people spies and all of that stuff. I began to feel pretty ashamed, myself.’60
Australian expat Phillip Knightley, the doyen of espionage journalism and author of several books on spies, including The Master Spy on the Philby saga and The Second Oldest Profession, which looked at the spread of espionage paranoia especially in Britain, says Wright was a ‘fantasist’ and his book would not be a major source nowadays for any serious research about MI5. As to whether Hollis was a spy, he says, ‘No, no, of course not.’ Asked about the lasting significance of the Spycatcher case, he replies:
I don’t think it had any! It was the Aussies giving one in the eye to the Poms. It was not really important in the legal history of spies and spying. It caused a little frisson at the time. It gave Turnbull a chance to make a name for himself. But the long-term significance? Probably none.61
Turnbull, of course, looks back on it all fondly:
It was a great win; it was great fun … Heinemann had very little confidence that the case could be won and we’d agreed to take it on for really a nominal fee, and of course Wright didn’t have any money and we were this threadbare tiny little legal team, and yet we were able to win. Australians like underdogs!62
Turnbull’s own book, The Spycatcher Trial, sold nowhere near as well as Wright’s, of course. The London Review of Books bridled:
Nobody can begrudge a lawyer who fought back from zero like Turnbull did the chance of telling how he went 12 rounds with HMG and won on points. But the arrogance that carried him through, laced with a partly affected Aussie contempt for British toffs, doesn’t make good reading.63
Or not in England, anyway.
The Ellis and Ramsey screenplay, by contrast, was a well-paced, geopolitically savvy courtroom drama, and may well have been produced had Turnbull not flown off the handle at a meeting between the three men and Kim Williams, then chief executive of Southern Star, at Turnbull’s office. Turnbull wanted a heroic sum of money for the rights. Williams was non-committal, saying ‘Careful, Malcolm, a lot of this is just in the public domain.’ Which was clearly the wrong thing to say, because Turnbull lost it, screaming and shouting and carrying on. Williams recalls: ‘I think Bob and Stephen were gobsmacked. There are times in life when you say, “You know what? Fuck off.” And I got up and left.’ He bumped into Neville Wran on the way out, saying cheerfully, ‘Hi, Neville, I’m off.’ Ellis gave Williams a friendly call afterwards to ask, so are we on? The answer was still no.64
Hopefully Spycatcher, the miniseries, might yet make the small screen. Although Wright was no hero, and his book unreliable at best, Turnbull drew the best out of the case, and refers to it often in support of free speech. In 2010, for example, he was one of the few politicians to stick up publicly for Wikileaks founder, Australian citizen Julian Assange, when prime minister Julia Gillard was claiming he had broken Australian law by publishing a cache of 250 000 top-secret US diplomatic cables. Turnbull dashed off an op-ed warning this was wrong in law, and that Assange should not be made a martyr: ‘just as the vindictive pursuit of Peter Wright turned his book into an international bestseller, so the furious attacks on Assange are likely to be counterproductive’.65 He followed up with an important speech that drew legal parallels between the two cases: ‘the decision of the High Court in Spycatcher made it quite clear that any action in an Australian court to restrain Assange from publishing the State Department cables would have failed’.66
Paradoxically, although the Spycatcher trial had launched Turnbull’s reputation into the stratosphere, it did not propel him further into the law. In fact, as he said later, a career in the law had already lost its appeal: ‘I was thirty-two, thirty-three, I had done Spycatcher, this phenomenal case, and I had won it. I thought to myself: if I stay being an advocate I have thirty to forty years of anticlimax in front of me.’67
Turnbull was going into business.