Purging the Trade Unions

This chapter looks at government attempts to ban trade unions, considering the steps that were taken in lieu of an outright ban on trade union membership. Consistently with other measures taken at the time under the cover of security, government intervention to deal with the alleged menace of Communist infiltration of the civil service trade unions did not take the form of legislation. The legal position reflected both the lack of legal regulation of industrial relations generally and the lack of legal regulation of public-sector employment in particular. In practice, governments rarely needed to reveal or justify the legal foundations for their actions. The benefit for government is that although security policies might well be announced and made public, there would be little accountability thereafter if operated unobtrusively.

Surveillance and the Purge

This chapter explores the so-called civil service ‘purge procedure’ announced in 1948. The purge procedure is important because it both empowered and potentially contained MI5. It empowered MI5 not only in the sense that it required the collection and use of information about Communist Party members and sympathizers, but also in the sense that it enabled MI5 to make the assessments about who was to work and who was not, and to work where and in what circumstances. However, it potentially constrained MI5 in the sense that these assessments would now be the subject of scrutiny, albeit to a body of officials appointed by the government who would not pass any judicial test of independence. Nevertheless, by the appointment of the Three Advisers to scrutinize its operation, the Attlee government introduced what was to be MI5’s only direct accountability until 1985.

Surveillance Methods

This chapter examines the surveillance methods used by the MI5. It is a curious feature of MI5’s mandate that it included nothing about the methods to be used for the purposes of the defence of the realm, which was its core task. The Security Service would obtain information about individuals and organizations in a number of ways, which might be described as volunteers who spontaneously reported fellow citizens; monitoring by Special Branch, infiltration, and the use of informers; watching and following; interrogation and questioning; and the interception of communications (mail, telegrams, and telephones); as well as the use of secret microphones hidden in various locations; and foreign security and intelligence agencies. The chapter also looks at the different circumstances in which these different forms of surveillance were used: a contrast between routine and intense surveillance; between passive and active surveillance; and between constant and periodic surveillance.

Introduction

This introductory chapter provides an overview of MI5, one of a number of security agencies. The Security Service was created in 1909, initially to deal with the problems of German espionage. Although its existence was acknowledged by government and its Director General (DG) sometimes referred to it in the press, the Official Secrets Act 1911 ensured that the activities of MI5 were protected from unwelcome public activity for much of the twentieth century. During this time, however, the great bulk of MI5’s attention was devoted to the Communist Party, its members and related organizations and during the Cold War this was its principal pre-occupation. The chapter assesses the extent to which MI5’s violations of civil liberties were sanctioned by the law, and by the human rights obligations then emerging. This is asked against a background of constitutional principle. The first and most significant of these principles is the Rule of Law.

The Guilty Secret

This chapter studies the use of the controversial surveillance method called ‘Special Facilities’ (SF), the use of which historically MI5 to this day seems keen to conceal. SF was the code name for telephonic electronic eavesdropping, and sometimes for the use of microphones by MI5 for covert purposes in any circumstances. SF in this former sense was often, but not always, used in conjunction with a telephone interception, which was almost invariably set up at the telephone exchange, or at least outside the target’s home or office. The legal questions raised by the use of SF were never properly addressed until 1989. At the heart of it, however, is the question of whether the placing and use of covert listening devices was lawful.

Lord Denning Takes Over

This chapter assesses the Denning Report. If the Prime Minister was the biggest political casualty of the Denning Report, the Security Service was by some way the greatest beneficiary. This is subject to the caveat that MI5’s cover had been blown, with much unwanted publicity about its activities being detailed in the Report. Having shown that the judges could be trusted politically to protect the security and intelligence services, Lord Denning nevertheless also exposed serious problems about MI5’s mandate and its accountability, problems by which he seemed to be unconcerned. What Denning revealed was that MI5 had total control of the mandate in determining the scope of its powers and when and how to exercise them. What Denning also revealed was that, since 1951, no one had been checking to ensure that MI5 operated within the boundaries of its mandate and that it was not exceeding its terms in a way that was not ‘honest and reasonable’.

Surveillance and the Industrial Purge

This chapter examines the vetting and purging of workers in the private sector. It was the ‘longstanding practice’ even before the Cold War that the purge and other security procedures extended well beyond the civil service into private industry. This ‘longstanding practice’ could operate only because of the surveillance work undertaken by MI5, in both compiling and maintaining the blacklist of Communist Party members. In the case of the private-sector exclusion of Communists, it was left to MI5 to secure the removal of workers to whom the Service objected: MI5 may have had no authority, but it had power. One question for this chapter is thus the legal issues surrounding such intervention and the potential legal liabilities to which it could give rise, while another is the scope of the authority and the manner and circumstances in which intervention might take place. However, the underlying theme is the question of accountability.

The Security Service Mandate

This chapter traces the steps taken to implement the Stewart Report, and the fresh mandate for the Security Service which it produced. This was the Attlee Directive, a bowdlerized version of which adopted in 1952 became known as the Maxwell Fyfe Directive, diluting the political supervision of the Service which the Attlee Directive had embraced. The Attlee Directive was never published and was released to the National Archives in 2009, while the Maxwell Fyfe Directive was revealed only in 1963. What has not been revealed until now, however, is the expansion of MI5’s mandate by means of secret Supplementary Directives, in response to the clear failure of MI5 to operate within the boundaries of its authority.

Conclusion

This concluding chapter addresses the significance of examining the legal history record to better understand the nature, influences, and values of contemporary institutions. It is important to know, for example, why the modern law on the interception of communications contains the unique and eccentric power of the Home Secretary rather than a judge to issue warrants to authorize the opening of mail and the tapping of phones. The historical record also more clearly casts light on the close relationship between the Security Service and the government, which by virtue of this procedure not only knows about but also authorizes MI5 targets and operations, raising doubts about the operational independence of MI5. Moreover, the experience of the past helps in assessing problems of the present. In particular, it gives credibility and continuity to complaints about the use and abuse of surveillance powers and the corruption of the criminal justice system for political ends.

The Ubiquitous Lord Radcliffe

This chapter focuses on the work of Lord Radcliffe, a member of the Appellate Committee of the House of Lords and evidently a man greatly trusted by government. Lord Radcliffe presided over what was one of the most detailed inquisitions of journalism ever conducted in the United Kingdom, to which the press was legally bound to submit by virtue of the 1921 Act. Some of his judgments on press standards were excoriating. While few would be willing to justify the reporting criticized by Radcliffe, it is to be recalled that there was no evidence of any offence having been committed by any of the newspapers. The chapter also examines two important reports: the Committee on Security Procedures in the Public Service, a censored version of which was published in April 1962; and the detailed report of a Tribunal of Inquiry appointed to inquire into the Vassall case, the complete text of which was published in April 1963.