K D Ewing, Joan Mahoney and Andrew Moretta, MI5, The Cold War, and the Rule of Law
| DOI | 10.3366/elr.2022.0772 |
| Author | |
| Pages | 280-282 |
| Date | 01 May 2022 |
| Published date | 01 May 2022 |
This outstanding and important book sheds new light on the often-unsavoury history of national security law in the United Kingdom. It does so by focusing on the rule of law issues raised by the work of MI5 during the Cold War. Until almost the end of that period – and the enactment of the Security Service Act 1989 – the Service (“MI5”) lacked any clear legal basis and, despite occasional revisionist accounts, any legal powers to call its own. As the book shows, however, MI5 seems routinely to have exceeded the various directives which defined its functions and purported to limit its mission and to have interfered with individual liberties by carrying out surveillance of all manner of people who were not, and often could not have been, legitimate targets of its efforts. It is of course impossible to make this case via standard legal analysis. Precisely because of the extent of the illegality there is little or no legal record to examine. Even now very little detail about MI5’s actual work, as opposed to the law applicable to that work, shows up on the public record: it is found, if anywhere, in redacted parts of the reports of the Intelligence and Security Committee and in closed judgments given by the Investigatory Powers Tribunal and, following the enactment of the Justice and Security Act 2013, the civil courts generally. For that reason, the book is based on careful archival research, which – though it necessarily sheds light on the topic only in a rather oblique fashion at points – is particularly impressive in context of the very significant gaps in the archival record.
Against the background of a clear exposition of how the rule of law is to be understood for purposes of this exercise – in short, in a largely formal fashion, with a conception of fundamental rights owing far more to the “civil liberties” tradition than modern “human rights” discourse – the book begins chronologically, providing detailed considerations of the instruments by which MI5 was governed before it was given a legal basis – the better-known Maxwell-Fyfe Directive of 1952 and, before that, the Attlee Directive of 1946, and the Stewart Report of 1945 from which that followed. No sooner are the various framings considered, however, than the book turns to the ways in which the activities of MI5 strayed, almost immediately, beyond the (unenforceable) bounds set for it, taking actions which could not have been justified with reference to what was supposed to be its sole legitimate...
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