Employment, Justice and Détente: the Reform of Vetting

Date01 September 1991
Published date01 September 1991
DOIhttp://doi.org/10.1111/j.1468-2230.1991.tb02659.x
THE
MODERN
LAW
REVIEW
~
Volume
54
September
1991
No.
5
Employment, Justice and Dbtente: the Reform
of
Vetting
Ian Leigh and Laurence Lustgarten*
The Cold War may be over but an ugly reminder of the climate
of
opinion in the
West in pre-Perestroika and Glasnost days remains in the ubiquitous practice of
employment vetting.’ In the case of Britain, as with virtually all Western countries,2
controls were introduced
in
the late
1940s
to restrict, and in some instances to ban,
the employment of those judged to be subversive (primarily Communists) from key
sectors of the public service. These have also been extended with official blessing
to defence contractors and to non-governmental bodies of strategic importance such
as the BBC and the Atomic Energy A~thority,~ For students of civil liberties this
is
a
familiar story. It is some
25
years since the late Professor Street declared the
procedure for challenging refusal of security clearance
in
the public sector to be
‘a travesty of justice as Englishmen are accustomed to it.’4 However, several
recent events now make
a
reconsideration timely.
First, a major review of security procedures was announced by the government
in
July
1990.
Second, the domestic courts have now, in several cases, pronounced
upon the legality
of
restrictions imposed on public sector employees
in
the name
of national security. Third, there has been a rush of cases to the European Commis-
sion and Court of Human Rights where the extent to which vetting may be consistent
with
the Convention has been considered. Fourth, the Security Service Act
1989
significantly alters the rights of public and private sector employees in this respect.
The purpose
of
this article is critically to survey these developments to establish
whether through changed administrative practice, judicial intervention or legislation
the position of employees prejudiced by reason
of
national security considerations
~~
*Lecturer, Newcastle Law School, University of Newcastle-upon-Tyne and Senior Lecturer
in
Law,
University
of
Warwick, respectively.
We would
like
to thank Richard Chapman and Peter Jones for comments on an earlier draft and the following
for assistance and information: the Cabinet Office, Liberty, the Secretariat of the European Commission
of Human Rights, the Treasury Solicitor, Bruce Anderson, Murray Rankin, George Szablowski and Colin
Warbrick. We are also grateful
to
the University of Newcastle-upon-Tyne Small Research Grants
Sub-Committee for assistance
in
connection with this research.
1
For recent accounts
see
M.
Hollingsworth and R. Norton-Taylor,
Blacklisf:
fhe
Inside
Sfory
of
Polifical
Vetting
(The Hogarth Press,
1988),
introduction and chs
1
and
2;
S.
Fredman and
G.S.
Morris,
The
State as Employer
(London: Mansell,
1989)
pp
232-236;
1.
Linn,
Applicafion Refused
(London: The
Civil Liberties Trust,
1990),
but these must now be read
in
the light of the
1990
statement.
2
For earlier comparative surveys see D.C. Jackson
(1957) 20
MLR
364
(US,
UK,
NZ, Canada and
Australia) and M.R. Joelson
119631
PL
51
(US,
UK
and France).
3
Nuclear Installations Act
1965,
Sched
I,
paras
5
and
6
provide for termination of employment
on
grounds of national security. See generally Hollingsworth and Norton-Taylor,
op cif
pp
52-59;
R. Lewis
(1978)
ILJ
I;
J.C. Woodliffe
(19831
PL
440.
4
H.
Street,
Freedom,
the
Individual and
the
Law
(Harmondsworth: Penguin, 1st ed,
1963),
p
229.
613
Tltc
Modern Lmv Review
545
September
1991 0026-7961
7he Modern Law Review
[Vol.
54
can now be regarded as improved. In the course of this examination we shall
necessarily consider the legislative standards applicable to such issues in some other
jurisdictions (including some of the United Kingdom’s closest intelligence allies)
and whether their adoption here would be desirable.
The Origins and Development
of
Vetting
The origins of state employment vetting in the international ice age is not merely
a matter of chronology: its roots lie there
in
ideological and diplomatic terms also.
The latter is the hardest to document since the contents of the international agree-
ments between the
UK, US,
Australia, Canada and New Zealand based upon post-
war co-operation
in
nuclear energy and weaponry and signals intelligence remain
se~ret.~ However, it has been reliably asserted that the introduction of the purge
procedure in the
UK
in
1946
was as a direct result of US pressure following the
exposure as a Soviet agent of the atomic scientist Alan
Nunn
May.6
It is easier to trace the ideological pedigree of vetting through the official accounts.
Traditionally, the
UK
civil service has perceived itself to be politically neutral and
was, therefore, concerned to preserve appearances by controls on the political
activities
of civil servants,’ whilst remaining unconcerned with their personal
beliefs. Broad loyalty to the state was presumed from citizenship, hence restrictions
were imposed limiting appointments to
UK
citizens.* The one notable historical
exception to this approach to some extent pre-figures political vetting: namely the
imposition of religious tests, dating from an age when religious non-conformity
was seen to be deeply subversive of the existing order and of the very structure
of the state.9 However, the post-war scandals demonstrated clearly that the normal
assumptions about loyalty from nationality (and more informally background) were
quite unequal to the threat posed to Western public and defence agencies by
ideologically motivated espionage.
The initial purge was aimed at Communists (and, ostensibly, at Fascists) in key
designated posts, on the avowed ground that their loyalty to the Communist Party
might
for
some conflict with loyalty in public service. Since there was no way of
distinguishing potentially disloyal Communists from those who were not, all were
to be removed from sensitive posts. Where transfer
to
other suitable, non-sensitive
work proved impracticable, they would be dismissed.
lo
Not surprisingly, the purge
procedure has been regarded as of dwindling importance since Positive Vetting has
been applied to new entrants to sensitive posts
in
the civil service for more than
30
years.
Positive Vetting (PV) was introduced in
1952,
initially to protect a small number
of posts dealing
with
highly classified information, supposedly that connected
with
the atomic energy programme.” The purpose was to attempt ‘positively’ to
5
J.T.
Richelson and
D.
Ball,
me
Res
mat Bind
(Sydney: Allen and Unwin, 1985) describes intelligence
co-operation in the UK-USA alliance.
6 P. Hennessy and
G.
Brownfield, ‘Britain’s Cold War Security Purge: the Origins of Positive Vetting,’
25
rite
Historical Journal
(1982), pp 965-973.
7
me
Political Activities
of
Civil Servants,
Cmd 8783 (March
1953),
revised following the
Report
of
the Committee
on
the Political Activities
of
Civil Servants,
Cmnd 7057 (January 1978).
8
Act of Settlement 1700,
s
3;
Aliens Restriction (Amendment) Act
1919
(as amended by Aliens
Employment Act 1955,
s
I);
Army Act 1955,
s
21; Air Force Act 1955,
s
21.
9
St John Robilliard,
Religion and the
Law
(Manchester: Manchester UP,
1984)
Appendix describes
the progressive removal of religious disabilities.
10
HC Deb vol448, cols 1703-1708
(15
March 1948).
I1
The definitive official accounts are:
Security Procedures
in
the Public Service,
Cmnd
1681
(April
614

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