Keeping our spies under scrutiny

The British government is proposing to introduce controls over the security forces. Peter Evans, formerly an investigative journalist on The Times, questions whether they go deep enough to be effective.

Peter Evans
6 December 2011

The British government is proposing to introduce controls over the security forces. Peter Evans, formerly an investigative journalist on The Times, questions whether they go deep enough to be effective.

The power of the intelligence services to influence ministers was revealed by William Hague, Foreign Secretary, in a televised set-piece speech about changes to the rules governing them.

The speech was given under the gaze of the three heads of the agencies involved – MI5, MI6 and GCHQ – sitting in the front row. In a speech leavened with effusive praise, Hague said of Britain’s spies: “I know that their values are the finest values of the United Kingdom.” Yet in a remarkable non sequitur, The Times reported he also conceded that stories about possible British involvement in extraordinary rendition and torture had damaged Britain’s international standing.

How can allegations about possible involvement in torture and extraordinary rendition endorse an espousal of the finest values in the UK? The answer is that the government is proposing in the Justice and Security green paper a long-called-for tightening of control over the intelligence services, and Hague saw fit to ameliorate them by buttering them up.

The mere fact that curbs are to be intended on the intelligence services means they have not been properly controlled. Recently documents found in Libya among the files of Muammar Gaddafi’s former intelligence chief, Moussa Koussa, showed that MI6 had been involved in the rendition of Libyans and their families to Gaddafi’s jailers and torturers, and as the Guardian reported, “ministers and former ministers (Labour and Conservative) ran for cover”.

The question of whether MI6 played a role in the rendition of Libyan terrorist suspects will now be considered by the Gibson inquiry into allegations of the services’ involvement in torture and rendition, which is currently looking at cases of foreign nationals held at Guantanamo Bay. Sir Peter Gibson, a former appeal court judge, who was also an official “commissioner” responsible for monitoring the intelligence agencies, will hear all the information gathered by MI5 and MI6 in secret hearings. So how will the public know what the intelligence agencies were up to and whether ministers approved?

A similar clamp-down will be imposed on civil court hearings of claims by terrorist suspects and others seeking redress. Individuals seeking redress and their lawyers would be barred from hearing evidence, deemed to be secret, against them. That part of the proceedings will be behind closed doors. The aim is to avoid big compensation payouts by allowing parts of cases to be heard behind closed doors when the evidence is deemed to be so secret that open justice, until now a bedrock of courts in this country, could be curbed. A judge will decide whether such restrictions should be imposed.

The new system, already used in much criticised immigration deportation hearings, would involve the use of security cleared special advocates to act in the interests of the barred individuals, but not for them. They would not be their clients. The special advocates would see all the material.

The green paper follows a Supreme Court ruling that it was for Parliament, not the courts, to introduce the procedure in a civil trial for damages. Lord Dyson said it would exclude a party from the closed phase of the trial, during which he or she could not see the witnesses or the closed documents. They could not hear or read such evidence, or the submissions made in the closed hearing. Nor could they see the judge delivering the closed judgement or read it. The special advocate system, even in the statutory contexts for which it was devised, could mitigate but not cure the flaws in the closed procedure proposed.

The government’s plans will only partly please the security services and intelligence community. The green paper says: “It is not the Secretary of State but the court that determines whether or not material should be withheld.” They will be even less pleased with a clampdown on their previously free-wheeling activities, which have led to criticism that they are only partly under control. The Intelligence and Security Committee, a committee of MPs and peers answerable to the Prime Minister, will also be transformed into a select committee answerable to Parliament. The committee will hold public evidence sessions and will have power to require information from the security and intelligence agencies subject to a veto by the Secretary of State, not by security chiefs. The Government is looking at the Committee’s proposals to examine “aspects” of the agencies’ operations. 

There is an important omission from the proposals. Over my time reporting on home affairs I became concerned about the agencies’ potential influence over politicians and public life, and especially about the pressures that MI5 could and did exert on those whom they decided to investigate and keep under surveillance. There will for example be a file on William Hague as there is on other ministers, and on selected journalists, academics and political activists. Any weak spots will be known – though in the nature of things no-one would dream of suggesting that the presence of MI5’s files could influence those involved in public debate

Not so well known is the pressure put on individuals targeted, sometimes indiscriminately. One of them, Bernard Floud MP, committed suicide at a time when he was under scrutiny. MI5 might say the scrutiny was justified, as he was named for a junior ministerial post in Wilson’s Labour government. Before Joan Ruddock became an MP she was, she said, as chair of CND “frequently subjected, as a direct consequence of my involvement in CND, to frightening and intimidating behaviour. I shall never know whether those events related to MI5, but I feel certain that my privacy – and that of my family – was systematically invaded, and my character impugned with absolutely no justification.” She said that according to Cathy Massiter, a former MI5 officer, “my file grew and grew”. Victoria Brittain, a Guardian journalist, was targeted. According to a former MI5 agent, Annie Machon, she “posed no threat to security but was in essence persecuted by MI5 for over a year.” (See Machon’s Spies, Lies and Whistle Blowers, published by Book Guild.) The government’s proposals should contain ways to protect those who excite the interest of the agencies at home and abroad, not always with justification.

MI5 has enjoyed an untrammelled drive for power and influence, and such was its reputation that at one discussion about it I was told it liked to be regarded with deference. That posture was shattered by disclosures of comments made by Lord Neuberger, Master of the Rolls, after an extraordinary intervention on behalf of the government to try and remove them from a Court of Appeal judgement.
He said there was such a “culture of suppression” in the security service and the Foreign Office that the public and the courts should “distrust” any assurances from them that they respect human rights (The Telegraph, 10 February 2010). He also bluntly accused MI5 officers of lying to Parliament about the service’s role in the torture of a Guantanamo Bay detainee and said civil servants in the Foreign Office deliberately withheld information from the Foreign Secretary.

Three senior judges agreed to remove the most damning passage, but Lord Neuberger later admitted he may have been “over hasty” in taking out his comments at the request of Jonathan Sumption QC, working on behalf of the Foreign Secretary, David Miliband. Lord Neuberger’s attack was in a draft version of the ruling. The final judgement was later released. 

The weight of evidence, or of allegations, is now beyond censorship by MI5 and its friends and apologists. It may even give credibility to the truth about the experience of an award-winning investigative journalist like myself who has unique first-hand experience, as an objective outsider, of MI5.

Peter Evans has worked for The Times in various capacities, including as Home Affairs Correspondent. He is the author of several books, including "Within the Secret State" (Book Guild 2009) on national security and MI5.

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