UK government moves to protect the tapping of phones

The Observer, February 24 1985

Telephone-tapping is such an insidious intrusion in a free society that its use should be kept to the absolute minimum needed for national security or protection from terrorism or other major crimes. Its use should be controlled by statute and subject to independent checks to ensure that abuses or excesses are found out and stopped.

It is all the more alarming, therefore, that hard evidence has now come to light that trade unionists, journalists and peace activists have had their telephones tapped. It is finally possible to say that, not because of self-important paranoia or funny noises on the line, but because two former MI5 officers have stepped forward and given first-hand testimony.

The Government refuses to confirm or deny such allegations and points instead towards its new Bill on the Interception of Communications. This is the perfect answer to all the fears, it claims – “probably the most significant march forward for civil liberties in this Parliament,” according to a Conservative MP, Mr Ivan Lawrence.

But the Bill is nothing of the kind. Far from being a shield to protect our civil liberties, it is a collection of loopholes stitched together with just enough thread to protect the government from the European Court. The biggest single loophole is that, while it purports to deal with the interception of all communications, both spoken and written, it concentrates on phone-tapping, by which it means the interception of calls at telephone exchanges, and completely ignores bugging, ie the planting of electronic listening devices.

The two former MI5 officers have explained – without the help of the Indepedent Broadcasting Authority – that bugs were planted in a cafe and in an hotel used by Mick McGahey and in the private home of Ken Gill in order to eavesdrop upon their trade union and political conversations. The use of bugs in telephones is, apparently, established practice under the MI5 code-name Cinnamon.

In so far as bugging involves breaking and entering, it is clearly illegal. But as far as the Bill is concerned, such crimes need not be addressed because such activity is not acknowledged to be taking place. More loopholes follow. For a tap to be sanctioned there must be a ‘major subversive, terrorist or espionage ‘ threat to which MI5 have been alerted, or a serious or violent offence which the police are investigating. Rather than lay down strict guidelines for this state monitoring of private citizens suspected of crimes, the new Bill loosens the slack regulations even further.

There will be two new grounds on which tapping may be authorised- ‘in support of the Government’s defence and foreign policies ‘ and where they are necessary for ‘safeguarding the economic well-being of the United Kingdom.’

It is not difficult to imagine cases where the first excuse will be used merely to tap the telephones of the government’s opponents. There need be no more fussing about whether they belong to subversive organisations: if they don’t agree with the policies of the government of the day, they may, quite legally, have their phones tapped.

The Bill goes on to increase the duration of telephone-tapping warrants and to permit the disclosure of ‘metering’ information—the record of who has spoken to whom, but not what they have said.

Against all this, the government offers a tribunal of five legally qualified people who will investigate complaints. The catch here is that they will conduct their business in private and disclose their conclusion only if they have established that there has been improperly authorised tapping. However, most complaints will meet with silence, which might mean either that they are not being tapped or that they are being properly tapped.

The Government argues that secrecy is necessary in the interests of national security. The West Germans, however, manage to run a system where any target of surveillance has to be informed of the operation once it is concluded – a considerable deterrent to excess.

The timing of Channel 4’s research into MI5 could hardly have been better. Despite the IBA’s ban, it appears already to have worried the government: the new Bill had been provisionally listed for its second reading in the House of Commons on Tuesday. The debate has been postponed.

The Home Secretary’s assurance that the Government “is not seeking through the introduction of this legislation to broaden the scope of existing practices” takes on a more disturbing colour when it is realised what these ‘existing practices ‘ are.

*UPDATE. This pattern of official behaviour –  in which the disclosure of abuse by the secret state is followed by legislation to permit the abuse – was repeated in the UK after the 2013 disclosures by Edward Snowden.