With Richard Norton-Taylor
Late on December 20, the day Parliament rose for its Christmas recess, the Government published a bill. It was extremely short; its text took up barely a page. Yet it has profound constitutional implications. It also contains the seeds of a potentially significant threat to civil liberties.
One phrase casually gives the Security Service – better known as MI5 – the authority for the first time to investigate ‘serious crime’ , a task hitherto the responsibility of the police. Thus MI5 would break out of its traditional territory – the protection of ‘national security’ against spies, terrorists and subversives – and into the world of law enforcement.
On the grounds that their traditional work is peculiarly dangerous and sensitive, MI5 officers have been allowed to work with the minimum of democratic control. Their budget is secret. All of their operations are secret. Any intelligence officer who wants to speak out against official malpractice is liable to special punishment prescribed by The Official Secrets Act. Any MI5 officer who chooses to bend the law or break the rules is immune from the complaints procedure which now monitors the work of police officers. Even the courts have given MI5 special privileges, protecting their internal paperwork from the kind of disclosure which governs the police.
And yet the new Security Service Bill proposes to allow MI5 to move into the world of crime without changing any of its special privileges. The effect has been extraordinary, pitching some of the most senior police officers in this country into the kind of anxiety which was once more familiar among trade unionists and nuclear disarmers. Chief police officers were not consulted about the contents of the bill until the last minute , and when they did offer their advice , it was ignored. Hemmed in by official secrecy and a fear of being accused of meddling in politics, they are saying little in public. In private, however, they point to a cluster of loopholes and ambiguities in the bill.
One of the most senior detectives in Britain describes the bill as an attempt by MI5 to “corner the market” in electronic eavesdropping. His concern rests on the second of the bill’s two short clauses, in which the Home Secretary proposes to allow MI5 to apply to him for “property warrants” to break into the houses and vehicles of suspected serious criminals in order to place electronic bugs. This touches a sensitive nerve, because for years now the police have been doing exactly this without any statutory permission at all. They have been doing so simply on the signature of a Chief Constable, in accordance with guidelines laid down by the Home Office in 1984. If pressed, they say it is all a matter of common law and, on the rare occasions when anyone has discovered and complained, judges have been content to support them.
However, the new bill would give MI5 a fully-fledged legal right to this activity. The police fear is two fold. The first is a legal one, that the next time they are caught planting a bug on private property, the existence of a statutory procedure will emphasise the legal weakness of their position and make it more likely that a judge will rule against them. The second, which follows from the first, is that if MI5 are the only organisation with access to legally approved bugging, they will be in a position take over. If the police wanted a legally defendable bug, they would have to go cap-in-hand to the Security Service to apply for the warrant. The senior detective said: “This is the first formal shot in a campaign by the Security Service to achieve nationwide control of this work to the exlusion of the police.”
This anxiety about property warrants takes on more force when combined with a second, simple criticism of the bill’s drafting – that it defines ‘serious crime’ so loosely that it goes far beyond the kind of heavy-duty international crime gangs that are conjured up by the Home Secretary in his speeches in defence of the bill. Borrowing the wording of the 1985 Interception of Communications Act, the new bill covers any offence which carries a sentence of 3 years or more on first conviction.
Tom King , the former defence and Northern Ireland secretary – now chairman of the Parliamentary Intelligence and Security Committee – has pointed out in the Commons that this could include a mugging or a wounding with intent. The bill’s wording also specifies “conduct by a large number of persons in pursuit of a common purpose”, covering anything from murder to obstruction of the highway. Any alleged offender in this broad category of crime would, under the existing terms of the bill, be subject to the full force of MI5, including its exclusive statutory right to property warrants.
And the crucial point is that all of this would take place beyond the range of the public scrutiny which applies to police operations. The Association of Chief Police Officers have called publicly for “transparency and accountability” in the bill. In private, they wonder what on earth will happen if a drug dealer complains that during a joint operation by police and MI5, someone planted drugs on him. An investigation would begin. Police officers from another force would be called in and, under the control of the Police Complaints Authority, they would start to investigate. Their investigation would have to stop, however, at the point when they ran into the MI5 officers, who would remain subject to an entirely different procedure, controlled by the Home Secretary, monitored by the Security Service Tribunal, reinforced by official secrecy. Since it was established in 1989, this tribunal has considered 187 complaints against MI5 officers and dismissed every single one of them. It is impossible to know whether these decisions were reasonable since all of the tribunal’s work is secret.
The bill is the latest triumph of Stella Rimington , MI5’s director-general, who is to retire in the spring. MI5 has prospered under her reign at a time when the agency might have been expected to face deep cuts following the Northern Ireland ceasefire and the end of the cold war. More than half of MI5’s resources have been devoted to countering Irish-based terrorism and espionage.
During the bill’s second reading on January 10, Chris Mullin , the Labour MP and campaigner against miscarriages of justice, asked whether the origin of the bill was ”the fact that the Security Service is running out of threats, and that a new one is having to be invented to save large public spending cuts that might otherwise have to be introduced to these bloated organisations?”
Mrs Rimington , the first head of MI5 to be officially identified and the first woman to head the organisation , was an inspired choice. She is articulate, persuasive, and reassuring. She is a skilfull negotiator in the Whitehall jungle. She has impressed Home Office officials and ministers (including the ubiquitous deputy prime minister, Michael Heseltine) to whom – unlike senior police officers – she has direct access. With a low-key but highly-sophisticated ”getting to know you” campaign, she has also made her mark on sceptical backbench MPs, as well as the Labour front bench. Recently, she has coaxed Stephen Lander, her shy, but acute, successor, as he prepares to taken on her mantle.
Four years ago, Mrs Rimington wrenched from a demoralised Metropolitan Police Special Branch the lead responsibility for countering IRA terrorism on the mainland. It was a defeat all the more galling for the branch which was set up more than a hundred years earlier, specifically to monitor republican activities in Britain. With victory in the bag, Mrs Rimington then adopted a conciliatory approach towards a bruised Scotland Yard, playing down MI5’s victories and stressing the need for cooperation. From her wood-panelled office in Thames House, MI5’s new headquarters close to Parliament, she engaged in what one well-placed official describes as a ‘’smoothing of egos”. Her move on serious crime was politically astute.
For several years, the police have been lobbying steadily for the right to set up a new national squad to take on serious organised crime. However, chief officers say they had no idea that the Prime Minister had decided to give them the squad. He simply announced it at the last Conservative Party Conference, in Blackpool. It was for the same political reasons, insiders say, that the Government laid itself open to Mrs Riminton’s campaign. The Government wanted to be seen to be doing something. Senior MI5 officers set up their antennae, felt the mood in Whitehall, and Mrs Rimington went to work.
In his public pronouncements on the bill, the Home Secretary has disguised its origins in MI5 self-preservation and claimed instead that its object is “enhancing the capability of our law-enforcement agencies”. Police point out that they never asked for MI5 help and do not feel the need for it. They insist that, contrary to the claims of the Home Secretary, MI5 offer no skills or techniques which are not already available to the police. “We can always use the extra resources,” one chief officer said, “and if they wanted to uproot a group of MI5 officers and plant them in the police service, that would be very welcome. But for reasons best known to the Home Secretary, that is not what is going to happen.”
Although the shadow Home Secretary Jack Straw has accepted the principle of the bill, there are signs of opposition stirring. “The Security Service is being allowed to write its own rules, while the police are subject to clear statutory and constitutional provisions”, warned Alan Beith, Liberal Democrat home affairs spokesman and member of the Intelligence and Security Committee. “The police must stay locally based and democratically accountable”, says the Committee of Local Police Authorities. “The Security Service is neither”.
Critics of the bill point to last summer’s report on organised crime by the Home Affairs Select Committee which concluded: “Whilst we recognise that intelligence gathering has a vital role to play in the fight against organised crime, we do not conclude that the present situation yet calls for substantial inroads to be made into ordinary citizens’ freedom from intrusion by the state.”
Jim Sharples, chief constable of Merseyside and the president of the Association of Chief Police Offices, is due to have a meeting with Michael Howard next week. The chief officers have been pushing for a compromise over the core of the bill. They want the Home Office to attach to the bill a code of practice which would define the balance of power between police and MI5. They want: the police to have the primary role; the police, through the National Criminal Intelligence Service to be responsible for tasking MI5; MI5 to undertake no independent “freelance” work without them; MI5 to contribute its full range of skills.
The Home Office claim that they agree with these proposals. So, too, do the intelligence agencies who took part in an Inter Departmental Working Group which was chaired by an MI5 officer and which backed the proposals in its report last summer. The sticking point is that the Home Office are refusing to include any of them in the wording of the bill on the grounds that it will make it too complicated. They say it should be enough that ministers have given their word. With all due respect, some police are begging to differ.
Equally important, the chief officers are insisting that they, too, must be given a statutory procedure for obtaining property warrants. The Home Office have told them that they can have a new bill but the police see no sign of progress and they have been warned privately by senior Home Office officials that such a bill would be most unwelcome if it caused a political row about the existing legal vacuum surrounding police bugging.
Tom King and his Intelligence and Security Committee also have asked for changes in the bill, particularly for a narrower definition of serious crime. They, too, are being resisted by the Home Secretary, who says that a tight definition would be open to legal challenge by barristers looking for loopholes to secure the release of serious criminals.
In the background, some senior police who already have close contact with MI5 officers on terrorism and subversion, report that the Security Service itself is not united behind Stella Rimington’s coup. They claim that there is a “traditionalist wing” in the service which is alarmed at the dilution of its role and which fears that the move into serious crime will be followed inevitably by an erosion of its privileges. They fear, in particular, future court cases where their officers are expected to give evidence.
In the past, MI5 officers have been allowed to give evidence anonymously with their faces hidden behind screens. However, they have no legal right to this privilege. It is granted case by case at the discretion of the judge and, in the future, the traditionalists fear, judges may start to question whether MI5 still has the right to the privileges of secrecy.
