Like all good spy stories, this one begins with a beautiful woman. MI5 attempted to recruit Jane Turnbull at Oxford, with the fabled ‘tap on the shoulder’. No doubt they had satisfied themselves of her loyalty – her father was a bank executive, the family lived in a solidly conservative suburb outside London, and she had been recommended by one of her history tutors. However, they were evidently unaware that she was my girlfriend, attending all the Oz acquittal parties in London basements, and had a very fine sense of mischief. She declined the proffered career as a spy because she wanted to be a literary agent (which she still is). We occupied our own basement in Notting Hill for a while, until she sensibly left me for a poet (a published poet, I might add), but she followed my career and remembered my interest in using the law to challenge the power of the state. In 1985, by which time she was working for Heinemann, the publishing house, she called me up and invited me to Sunday lunch with her partner Brian Perman, Heinemann’s CEO. We met at a pleasant restaurant overlooking Camden Lock. Jane was excited, Brian a bit apprehensive. He had bought the rights to a book called Spycatcher and wanted my advice. He had just been telephoned by John Bailey, the Treasury Solicitor (the government’s legal chief) and warned against publishing it – or else. ‘We have a bottomless purse,’ Bailey had said: a threat to take injunctions and other actions which could bankrupt the company if it dared to publish.
I knew a little about the author, Peter Wright, a former assistant director of MI5, who had broken cover a year before with an interview for Granada Television’s World in Action from his retirement home in Tasmania, making allegations of treachery in the British secret service. I had been retained as an adviser to the Granada team to make a programme about the Australian Freedom of Information Act – an anodyne subject but one for which I arranged interviews with Gareth Evans (the Attorney General) and my barrister brother Tim, who was filmed using the Act to get information from the army, which he used to stop public parkland being used for a shooting range. All very worthy, no doubt, but hardly the cutting-edge material for which World in Action was famed. I discovered later that I had been used as a cover – when I went back to London, the team slipped down to Tasmania, in great secrecy, to interview Wright. Its brilliant director, Paul Greengrass (who went on to direct the Bourne movies), stayed on with Wright to ghost-write Spycatcher. I did not mind being used as a decoy – our documentary had given a fillip to the campaign for a Freedom of Information Act in Britain – and I watched the programme about Wright with some interest. He seemed a genuine whistleblower, even if he was partly motivated by anger at what he saw as a betrayal in denying him some pension rights. As a former senior member of MI5, his allegations had to be taken seriously.
Brian outlined them over lunch. The book he had bought would reveal that Wright – hired as an electrician – had been initially employed to burgle and bug his way around the foreign embassies in London (a breach of the Vienna Convention, but everyone did it). It told how he had then been promoted to an interrogator, and claimed to have unmasked many ‘agents of influence’ who had historical connections with Soviet diplomats. He had subsequently become convinced that his own boss, Roger Hollis, the director-general of MI5 from 1956 to 1965, was one of them. His accusations, he said, had not been properly investigated and he had been pensioned off, but without a satisfactory pension.
There was little doubt that publication of Wright’s revelations as an ‘insider’ would breach the Official Secrets Act, which had a draconian section injuncting and punishing publication of the most anodyne of revelations – the number of cups of tea consumed in the Ministry of Defence, for example. It was used to ban One Girl’s War, a Mills & Boon-style memoir by a former debutante who had obtained a job as a typist in MI5 during the war and fallen in love with her boss, only to find her romantic hopes dashed by the dawning realisation that he would be happier in the arms of men. Brian knew that the Treasury Solicitor’s threat to bankrupt his company was overpowering: how on earth could he publish Spycatcher? Over coffee, I gave them an opinion, off the cuff, which went pretty much as follows:
- Publication of Wright’s memoirs was obviously in the public interest – in the international public interest – because Hollis had connections with the CIA and had travelled to Australia to advise the Australian Security Intelligence Organisation (ASIO). If, all that time, he was reporting to Moscow, and had never been called to account, this was certainly a matter about which the public ought to know. But there was no public interest defence to a breach of the Official Secrets Act, so the importance of the book was not a defence.
- There was, however, a ‘public domain’ defence – i.e. that the information had already been made public – to an injunction based on breach of confidence, but British judges would simply decide that it was overborne by the national interest in gagging spies and keeping intelligence service activity absolutely secret. It was certainly true that over previous years much had leaked to journalists and a lot of Wright’s allegations could be found in books published by right-wing journalist Chapman Pincher, although this information had been leaked to Pincher by Wright himself. The further problem was that Wright was an insider, and a ‘horse’s mouth’ allegation made in person by him had much more credibility than the same allegation made by a mere journalist from an unnamed source. For that reason, the public domain defence would not fly in an English court. An Australian court, however, might just uphold it.
- It followed that the proposed publication in England would be injuncted by the Treasury Solicitor and that appeals would be unsuccessful – and very expensive, because his threat about the state’s ‘bottomless purse’ was true. At this time, although the Cold War was past its peak, English judges had a knee-jerk propensity to uphold every government claim based on ‘national security’ without inquiry as to whether it might be bogus.
- Were Heinemann to publish in Australia, the company would have a reasonable prospect of beating off action by the UK authorities, depending on where the action was brought. Melbourne judges of the time tended to be Empire loyalists; in Sydney, the first-instance equity judges were unpredictable, but the new president of the Court of Appeal was Michael Kirby, who was sound on free speech, as were some of his colleagues. The High Court, if the case reached that far (and Mrs Thatcher would be determined that it should), could possibly decide that publication was in the Australian public interest (because of MI5’s close connections with ASIO) or because Australia was a sovereign state, and under international law sovereign states did not enforce claims of a political nature at the behest of other states.
- Win or lose, contesting an action in Australia, which Mrs Thatcher seemed determined to bring, would achieve massive publicity to whet the appetite of potential readers. It would be worth resisting to the hilt, so long as… (and this was the crucial bit)
- … A copy was sent, sold and secreted in the United States. Under the First Amendment, and most recently the Pentagon Papers case, publication there would be protected.
Brian was happy enough with my opinion to pay for lunch and in due course Heinemann’s solicitor, David Hooper, instructed me to advise the company on its reasonable prospects of beating off any legal action by the British government in Australia. The government began one in September 1985, before the book had even been completed, and Mr Bailey foolishly refused David’s sensible offer to remove anything that might damage national security: Mrs Thatcher was determined that Australian courts must apply the British Official Secrets Act and stop Wright from writing a word. This was not only a pig-headed refusal to compromise but reeked of colonial assumptions about Australia which were unacceptable at a time when that country was withdrawing from the Privy Council. So I was keen that the case should be fought and I believed it could and should be won.
Heinemann’s multitude of Australian lawyers, however, did not seem to share my confidence. The publishers, based in Melbourne, had instructed a local firm, which took the mistaken view that different solicitors and counsel should be brought in to act for Wright, and, because the Brits had sued in Sydney, two more firms were retained there. At the first, merely formal, hearing, there were thirteen lawyers in court to represent Wright and eleven to represent Heinemann. This was ridiculous: the costs were exorbitant and the Australian silks were saying that we would have better prospects in the English courts. As we had no prospects there at all, Brian warned me that Paul Hamlyn, the eccentric millionaire philanthropist who owned Heinemann, was minded to throw in the towel.
By a remarkable, almost Dickensian, coincidence, I came to meet Paul shortly afterwards at the home of our mutual friends, Gordon and Mary Ellen Barton. I encouraged him to fight for free speech, but he was hesitant about the cost and the half-heartedness of the Australian lawyers. Another meeting chez Barton was arranged, however, and Paul arrived as a man transformed. He was giggling as he told us how he had just been approached by an emissary from ‘the establishment’, a rather down-at-heel Tory MP, who had passed on the message that Paul would be severely punished if Spycatcher were ever published. Paul would never receive the peerage he would otherwise be vouchsafed for his charitable works, and his wife would not thereby become a lady. Paul’s eyes glistened mischievously as he thumped the table and declared, ‘This has made up my mind for me. We are going to publish Spycatcher – whatever the consequences.’
Paul Hamlyn was the real hero of Spycatcher, and this heavy-handed threat, which doubtless came from Mrs Thatcher, was his turning point. I was about to leave on my annual Christmas visit to Sydney, and I promised Paul I would find a lawyer who would understand the politics of the case and mount the defence we had planned at a reasonable price. I thought I might pay a visit to an old friend, Little Malcolm.
I had christened him ‘Little Malcolm’ when he came up to Sydney University: the Dramatic Society was performing David Halliwell’s play Little Malcolm and His Struggle Against the Eunuchs, about a young man planning from his bedsit to rule the world. Malcolm Turnbull always seemed to be struggling against eunuchs (and still is, by all accounts). He was working as a journalist while studying law and already had inordinate ambition. We met, in 1979, when he came to interview me while I held a visiting professorship at the University of New South Wales. We shared views on the social potential of law reform and got on like a house on fire. He desperately wanted a Rhodes scholarship and I was happy to be his referee. But he was in the doldrums about his application because of Rhodes’s insistence in his will that scholars must have an interest in manly sports: ‘They pick rugger buggers or cricketers,’ moaned Malcolm.
‘No, they don’t – my sport was tennis. There must be some sport you can do.’ We went through his pastimes, and alighted on surfing. ‘But it’s never been considered a manly sport – there are no precedents.’
‘There soon will be.’ I stayed up late that night writing his reference, with a disquisition on how surfing should be regarded, especially in Australia, as a muscular male activity. He was duly awarded the Rhodes, and while in Oxford he would visit me in Pembridge Crescent. On one delightful summer’s day I stood in for his father-in-law, a Sydney QC, at a tiny Oxford church and gave his bride Lucy away. He stayed in London after his course, with a job at the Sunday Times, which was aborted because of a long strike by the print unions – an event that may have shaped his then-uncertain political allegiances. We were both Whitlamites, and it could not be predicted in which party he would choose to rise to power. He began working for Kerry Packer, sorting out Packer’s rights to cricket teams and to Playboy, and I advised him to become independent – to go to the Bar. He did, but did not stick at it.
When I called to ask him to take on Spycatcher, his office was in the Packer building in Sydney’s Park Street, where he had recently set up an in-house solicitors firm. Malcolm’s political ambitions were in a bad way because he had just suffered attacks for being close to his boss, Kerry Packer. ‘You need this case, for the sake of your career,’ I said when we met. ‘It’s the best way of proving your free-speech credentials, and it will play well with republicans on the left – if you ever wanted to go that way – by standing up to the Brits. You are languishing here doing libel readings and suffering attacks from satirists.’ (He had at some point morosely shown me a clip of a satire programme mocking Packer and his ‘cat strangler’ lawyer – more on this shortly.) ‘This case will be fun – and, most important, it will be the making of you.’ I cannot vouchsafe my words as verbatim, but that was the spirit of them, and they worked. Malcolm agreed to act for Heinemann at a low fee in the legal action being brought by the British government.
Heinemann, whose Australian headquarters were in Melbourne, had announced the publication of Spycatcher in Australia, and the British High Commission immediately obtained a temporary injunction. The court where they chose to file was in Sydney. This was a strategic mistake, probably made because their diplomats preferred to work from their favourite consulate in Kirribilli, overlooking the harbour. It was the first of many tactical blunders by Mrs Thatcher’s legal army – so quick to bully but so weak and ill-informed when it came to a fair fight. Turnbull was beginning to relish it: ‘It’s a great case,’ he faxed me. ‘I am so grateful to that little turd Bailey for procuring it for us.’ Little Malcolm saw himself as David pitted against Goliath, although David did not have a media mogul at his back: Kerry Packer had to approve – and did. He had taken on the British cricket establishment and won, and saw no problem with taking on the British intelligence establishment.
Meanwhile, from England I dispatched written opinions on the law and decided to hunt up some evidence. The Attorney General’s writ had come with an affidavit by Sir Robert Armstrong, the Cabinet Secretary, claiming that in 1967 the Lord Chancellor had made a blanket prohibition on the release of any document making any reference to the security service. That Lord Chancellor was Lord Gardiner, my teenage idol who had defended Lady Chatterley and convinced Harold Wilson’s government to abolish the death penalty and theatre censorship as well as the crimes of homosexuality and procuring abortion. It was a delight to meet him, and although he was in the advanced stages of Hodgkin’s disease, his mind and memory were as precise as ever. Those electric blue eyes, which had once terrified witnesses like torches shone on rabbits at night, saw through Armstrong’s claim. He signed an affidavit to say that a blanket ban on memoirs was not what Lord Chancellor Gardiner had meant at all.
I was also keeping an eye on the cases the Attorney General was bringing in Britain against newspapers which had reported any of the details in the book: predictably, the courts always ruled against them. One judgment was brought down on the day I took a flight to Australia – David Hooper quickly obtained a certified copy for me to carry to Malcolm, who was appearing in a pre-trial hearing two days later. The ever-gentlemanly silk the government had instructed told the judge that the British High Commission would have the certified judgments available for the court the following week. Turnbull stood, perhaps with the hint of a smile, or more probably with a broad grin (I don’t know – like Macavity, I wasn’t there), to say, ‘Don’t worry, Your Honour, I have the certified copies here.’ He told me there was pandemonium from the team of British lawyers and spooks on the other side of the courtroom: how on earth had the certified copies come to Australia virtually overnight? Via the Soviet airline Aeroflot? Was Turnbull being assisted by the KGB? Mr Packer’s fax machines at 60 Park Street were soon to show signs of interference.
Then, in England, a funny thing happened. Paul Hamlyn and I finally read a smuggled copy of the finished book. It did not really have the kind of public interest we had initially envisaged – quite the contrary. Peter Wright turned out to have no qualifications. Nepotism had taken him into the intelligence service (his father was one of their scientists) and having begun as an electrician fixing surveillance devices, which is where he should have remained – he was a competent enough bugger – somehow (probably because of his intense right-wing paranoia) he had become an interrogator, virtually an inquisitor, harassing and embarrassing left-wingers who had looked kindly on communism in the ’30s, or at least until the invasion of Hungary in 1956. A number of his victims (including a Labour MP) had committed suicide after the stress of his McCarthyite interrogations. Wright believed the most incredible theories peddled by defectors (that the Sino-Soviet split was a cover story, for example). His case against Hollis had no real evidence – the man emerged as a dull but dutiful civil servant, who had aroused Wright’s suspicions because he had spent some years in China in his youth and was having an affair with his secretary.
But wait – there was a real public interest here. It was that a man of Wright’s malice and lack of judgement could ever become an assistant director of MI5. For me, this was the truly amazing revelation, together with its description of British ‘intelligence’ officials – pin-striped dunces who retired to their men-only clubs for well-wined lunches, topped off with a few double brandies before tottering back to their offices in Mayfair to gossip about sex scandals they might reveal involving ‘lefties’. Wright (who had only two supporters on MI5’s staff – an ex-policeman and an ex-army major) deduced that the organisation must have been infiltrated at the top because so many of their operations went wrong; he never considered the alternative hypothesis, that they were going wrong because of MI5’s incompetence.
There were a few amusing stories in the book, such as the incident at the Buckingham Palace roundabout when an MI5 car trailing a car of Russia ‘diplomats’ came too close and crashed into it: the drivers, both spooks, got out and solemnly swapped their fake addresses. There was the argument about the ‘watchers’, male and female, who sat in cars outside houses and were expected to fall into each other’s arms to allay suspicion when a suspect emerged – there had been a great internal debate about whether this might encourage infidelity. I think I had actually seen this happen once, when I was researching Reluctant Judas and had attracted MI5’s attention. When I opened the front door unexpectedly, the woman in the car opposite frantically threw her arms around the driver’s neck and started kissing him passionately. I had no idea that they might have been MI5 watchers, but the scene was so bizarre that it remained in my memory – years later, on reading Spycatcher, I was able to interpret it. There were also stories about a plot to assassinate Egypt’s President Nasser and about a cabal of spooks who linked up with right-wing businessmen to plot the overthrow of Harold Wilson’s government. But for any intelligent person, and any analyst reading it in Washington or Canberra, the message of the book was how incompetent MI5 had been in the ’50s and ’60s, running operations that did not operate and chasing its own tail by investigating its directors (not content with Hollis, the paranoid Wright also launched an inquiry into whether his deputy might be spying for Russia).
Peter Wright had unmasked himself (with the help of Paul Greengrass) as a highly disagreeable reactionary with no moral compass: he was in fact on quite a good pension but was bitter because he believed it should be better, so he had been selling secrets for several years to Chapman Pincher, earning £30,000 through a Swiss bank account. He had left England in 1975 to run a horse stud in Tasmania, telling friends that the motherland had ‘too many blacks’ (not a problem in Tasmania, where they had been wiped out by the British a century before).
My experience of Wright, when I spoke to him, was of a sour man who would do or say anything for money. He lived in a Little Buttercup world, where things were always the opposite of what they seemed. I told him I had been a board member of the National Council for Civil Liberties in the ’70s when MI5 had tapped our phones. ‘Yes, they did, they did, and that just proves how the organisation had been infiltrated by communists at the very top.’
How so? We were harmless.
‘Exactly so, exactly so. The reds were in control of MI5. They took their resources away from bugging the Soviets, and deliberately wasted them on bugging insignificant organisations like the NCCL. Do you see?’
I did not – MI5 had a long-standing hostility to the left, ever since they had manipulated the defeat of Labour’s first government back in 1924 by forging the Zinoviev letter, which suggested its ministers were allies of the Soviets. Wright was exhibit number one in a case against the kind of security services whose intolerance was incapable of protecting a tolerant state.
Back at the Bartons’ dinner table, Paul Hamlyn had now convinced himself that he was publishing the book at the expense of his peerage because Wright himself, rather than Hollis, needed to be exposed and MI5 reformed. But this created a possible difficulty: Mrs Thatcher (the plaintiff was Michael Havers, her Attorney General) had sued both Wright and Heinemann, and the two were not on the same page. Wright was claiming public interest in exposing Hollis, while Heinemann, stepping back, could claim that, in any event, the public would be legitimately interested in judging Wright and his coterie in MI5. They were both represented by Malcolm at my suggestion – to save cost, and strategically to present a united front. One night Paul (a fastidious man) suddenly stuttered, ‘I don’t really want Turnbull representing my company. He’s alienating people I know, and he’s a bit…’ (he reached for a word) ‘…uncouth.’ There was a pause, and then he said, ‘I would like you to represent the company.’
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 the Bartons’ establishment. I was applying for silk, which I needed to appear in Commonwealth courts, and had little doubt that the kind of reprisals Mrs Thatcher was threatening 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, however, was adamant. The next day I took my concerns to my head of chambers, Emlyn Hooson, 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, with which we could confound Sir Robert Armstrong. 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 became 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 own 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 it was too late for me to act for Heinemann 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 from 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 some legal submissions for Spycatcher a few weeks later. Malcolm did the trial well, assisted by the foolish stuffed-shirt Sir Robert Armstrong, who caused a scandal at Heathrow as he was leaving for Sydney by assaulting a press photographer. 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 right-wing mouthpiece of Chapman Pincher. He was also forced by Turnbull to admit that a part of his testimony 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 nobody had given much chance, namely 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 favour of free speech. In the High Court, the judges very quickly and coolly decided 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.66
But by now events had moved on. After our lunch, Brian 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 US 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 inspect the literary agency’s offices in Doughty Street. They found nothing – the agent, Giles Gordon, had taken the Greengrass/Wright file home and hidden it under his bed.67 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 at Kennedy and LAX, 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; one Labour council was actually prosecuted and fined for placing a copy in its public library.
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 – 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 showed 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 £4 million for its publishers. (On contemplating my own paltry bill for advising them how to publish, I wondered whether barristers should be entitled to 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 publication of Peter Wright’s paranoid fantasies, not a 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, using the services of Peter Carter-Ruck, a libel lawyer close to the intelligence services, 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 shared 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 implicated in a grave breach of the Official Secrets Act. We never heard from Carter-Ruck again, and several years later I had the pleasure of having Pincher’s action struck out, with an order that he must pay all our costs. It was an interesting example of what is termed a ‘gagging writ’ – a false claim brought in an effort to suppress an uncomfortable truth.
The next time, it was Turnbull’s turn to be defamed – by larger-thanlife Canadian mogul Conrad Black. Black had fallen out with Malcolm when Black’s Tourang consortium took over Fairfax Media in 1991. In his autobiography, published two years later, Conrad rehearsed with relish the Sydney scuttlebutt that Malcolm (in his much younger days) had threatened to kill his girlfriend’s cat if she left him for another man. She did, and rumour had it that he killed the cat by strangling it with his bare hands. 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-o-cide if its mistress remains cruel.68 Black’s claim that Turnbull was capable of some pussy-gulag was very defamatory – especially when published in England, this nation of animal lovers. I drafted a ‘letter before action’ which caused Black to withdraw the British and Australian editions of the book, but we had no power to have him remove the passage from the Canadian edition. There, some may really believe 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 for it.
* * *
The value of publishing Peter Wright’s malicious memoirs was not merely to push Little Malcolm towards his destiny (and Paul Hamlyn was finally elevated to his peerage by a post-Thatcher government): 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 1997, former MI5 officer David Shayler 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 and lie low and to 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 under Harold Wilson, 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 men’s plans; Peter Wright’s stories of MI5 plots against Wilson gave his fears some credence. MI5 had also been abusing its power to leak information about leftists to right-wing journalists like Pincher and to newspaper gossip columns. Private Eye was a favourite: the editor told me that he could always 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 legal conference at Christ Church College, 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. 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 her privacy. This experience was one of the factors that had persuaded me to fight to have Spycatcher published and it contributed to my view that absolute secrecy will come inevitably to cloak 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 the security services have been relatively benign. I undertook cases where ‘national security’ was alleged to be involved and 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 your client – when I was junior to the great Jeremy Hutchinson, defending Duncan Campbell, a journalist who was facing a long term of imprisonment for exposing the interception 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 prison.
I did receive direct evidence that my telephone was tapped when I became too busy with the case 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.’
‘No, it hasn’t.’
‘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, ‘OK, just send the cheque.’ I didn’t until after the case had 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 Kathy and I put him up in our attic at one point, 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 barrister 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 the Islamic extremist Yasin Abu Bakr, who had led 114 followers to attempt a coup in Trinidad, killing eight policemen and doing enormous damage. Abu Bakr and his men were all released from prison (see Chapter Eleven), and some years later I received a message that he was coming to Britain and wanted to see 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 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, my old friend Ramesh Maharaj, who was by then the Attorney General of Trinidad, called me up. ‘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 reason. For spooks, a little knowledge can be a dangerous thing.
In the late 1980s, by way of a reality check, I experienced communist surveillance on my visits to Prague to help its leading dissident, Václav 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 him (the worst that could happen to me was to be put back 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 out. I took these policemen to museums 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. Now, the most dangerous terrorists were members of the Animal Liberation Front, who rescued smoking beagles and threatened scientists who used animals in their 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 bedcovers of some of the women protesters 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 country, will behave immorally if not carefully regulated. My chambers helped to expose the scandal and sued Scotland Yard for child maintenance on behalf of the unwitting mothers. (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 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, handed over to US custody and denied access to a lawyer.69 An MI5 man was sent to interview him, and the questions he 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 British intelligence washed its hands of him. But had it been complicit in his torture? I was acting for the international media and we needed disclosure of the communications on his case between the CIA and MI5 and MI6: the British government resisted, citing an Anglo-American protocol which absolutely barred disclosure by either state if the other were to insist upon secrecy, as Washington did.
I contacted Morton Halperin, an old acquaintance who had served as a national security adviser to Presidents Johnson, Nixon and Clinton, and his evidence refuted the government claim: the protocol required each government to resist disclosure of the other’s secrets, but if this was required by a court order, then the order should be complied with. The case eventually settled, but enough of the facts had emerged to illustrate the moral questions that arise for the security services of countries which of necessity now have to work in collaboration with those of a US President who has promised to bring back waterboarding, and who claims that torture works. It doesn’t. The CIA discovered its primary clue to the hideout of Osama bin Laden not by torturing a suspect but after giving him a cup of tea.
I came to advise the then editor of The Guardian, Alan Rusbridger, when the paper first obtained documents from Edward Snowden, which seemed to show that Australian intelligence had been bugging the mobile phone of the wife of the Indonesian President. Australian lawyers said that these papers could not be published. I took a look at the documents – they were on DSD (Defence Signals Directorate) letterhead, and every page was stamped with a large coloured logo: ‘Reveal their secrets. Protect our own.’
‘Come on, Alan, this looks fake. This is Australian intelligence – they are intelligent Australians. I doubt very much whether they stamp such a corny motto on every page of their notepaper.’ They do. Caesar’s wife, or at least the wife of the President of Indonesia, should have been above suspicion. But spooks, or at least their political masters, love to lap up the kind of tittle-tattle that comes from mobile-phone intercepts, no matter how serious the breach of privacy.
Our allies were at it, too – Snowden revealed how the CIA had hacked into the cellphones of thirty-five heads of state, including Angela Merkel, who was not best pleased to find that the intelligence operatives had uncovered her takeaway orders for sausage and sauerkraut. Obama at least had the decency to apologise and promise not to do it again.
We have come a long way from tapping telephones. Secret policemen can find out all they need to know by analysing our metadata, our electronic habits. And one problem with the collection of metadata is that there are no limits to who gets targeted. It’s not confined, as it should be, to terrorist suspects and those believed to be engaged in serious crime. Take General Petraeus – he was America’s most successful soldier, about to be appointed to head the CIA. But then, shock horror! His metadata revealed he had had a brief affair with a woman who was writing his biography. Infidelity meant, to puritanical Americans, ‘Petraeus will betray us!’ It was the premature end of a fine career.
So if you become a target of the spooks, whoever you are, you have no remedy and no defence. The problem – and it is a problem, throughout the West – is quis custodiet? Who guards the guardians? No country, no cohort of countries, has yet come up with a satisfactory system of oversight. Such accountability as we have, in an unscientific, rough-and-ready way, comes from whistleblowers. They are dissidents, often, or troublemakers like Julian Assange (see next chapter), but as the great historian A. J. P. Taylor pointed out, ‘All change in history, all advance, comes from the non-conformists. If there had been no troublemakers, no dissenters, we should still be living in caves.’
* * *
After all my years challenging state claims to national security, in courts and books and lecture rooms, I can offer only a few rather simple observations on the quis custodiet? question.
Surveillance and other forms of intelligence-gathering are necessary to combat terrorism and serious crime (including international paedophile networks, tax evasion and human trafficking). There can be no absolute right to privacy, and secret surveillance, by its very nature, must for a certain time remain secret.
The historical record of Western intelligence services, so far as we know it, demonstrates a capacity, sometimes a tendency, to yield to the temptation to abuse this power. Whether it is MI5 smearing and plotting against left-wingers, or the CIA planning to assassinate Castro with an exploding cigar, or ASIO bugging the wife of the Indonesian President, surveillance power is dangerous if used without independent oversight.
Oversight of the security services by politicians, whether ministers or committees, is useless: ministers are rubber stamps and do what their Sir Humphrey recommends, while parliamentary and congressional committees are lied to and kept in the dark. Oversight must be independent of the government and of the security services themselves.
The first means of achieving this is to require all surveillance warrants to be issued or approved by a judge. That is a protection which Britain refuses to provide, despite the fact that it has been strongly recommended by its own national security adviser. At present, warrants are issued by approval of the Home Secretary – a political pushover for the security services – who has no time or judicial capacity to vet their applications. Even with this reform, it would be what goes on in implementing the warrant that would remain beyond judicial supervision, and judges in any event tend to be partial to the intelligence services (the Foreign Intelligence Surveillance Court in the USA, which issues warrants for FBI and NSA surveillance, has in thirty-three years turned down only eleven requests).
Where else to find guardians to guard the guardians? Never, I suspect, in the security services themselves, or in those who have been inculcated into believing that national security must always take precedence over civil liberties. We should be searching for patriotic sceptics, people like Alan Rusbridger and Helena Kennedy and AC Grayling, to place on oversight boards and commissions, citizens whose patriotism and decency is beyond question, who have an understanding of civil liberty and no predisposition to believe that everything the intelligence services say is true. (I could even describe myself as a patriotic sceptic, in the sense that I am loyal to both countries of which I am a citizen – except in cricket.)
Western intelligence agencies should have a published code of conduct, with disciplinary sanctions attached for its breach, and an independent tribunal to impose them. Lawyers, doctors and accountants have such a code – even estate agents, for heaven’s sake, have their ethical standards. For spooks, however, you feel sometimes that the only rule is that the end justifies the means. I was rather taken with a memorandum supplied by Snowden of a secret meeting between UK–USA partners at GCHQ in Cheltenham a few years ago. The Americans suggested a dubious expedient be adopted and the Australians were enthusiastic. ‘Oh no,’ said the Canadians. ‘We can’t do that. We have a charter of rights.’
Notes
66 Spycatcher: The Candid Autobiography of a Senior Intelligence Officer by Peter Wright (with Paul Greengrass) was published in Australia in 1987 by William Heinemann. Malcolm Turnbull’s The Spycatcher Trial was published by Heinemann in 1988.
67 Giles Gordon, Aren’t We Due a Royalty Statement? (London: Chatto & Windus, 1993), pp. 304–5.
68 There are many different versions of the false story of Malcolm killing the cat: one has him putting the pet in a freezer. See Richard Ackland: https://www.crikey.com.au/2009/06/18/loves-letter-lost-malcolm-turnbulls-dead-cat-scrawl-unearthed/, accessed 7 April 2018.
69 Mohamed, R v The Secretary of State (No. 2) (2010) EWCA Civ 158.