The Security Service Act 1989
| Published date | 01 November 1989 |
| Date | 01 November 1989 |
| Author | Ian Leigh,Laurence Lustgarten |
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02629.x |
LEGISLATION
THE SECURITY SERVICE ACT 1989
INTRODUCTION
UNEXPECTED
in its introduction, unaccompanied by any White Paper
or other supporting reasoned document, unclear in its underlying
rationale, uncertain in its constitutional impact, the Security Service
Act 1989 is also unlikely to be the last word on the subject. A deter-
mined Government clearly had the votes, but it is less clear that it had
the better
of
the argument. The Opposition parties, joined by a vigor-
ous group
of
Conservative dissidents, contested the Bill actively in
both Houses,l both at the broad level
of
principle and in relation to
practical institutional details.
Two distinctly different kinds
of
controversy have thrust the Secur-
ity Service (or
MI5
as it will doubtless continue
to
be known) to the
forefront
of
public attention. The first is the question of Soviet pen-
etration; in particular whether there was a “mole” in
MI5,
and
whether-as Peter Wright has obsessively insisted-that furry crea-
ture was Sir Roger Hollis, Director-General from 1956-65. Though
capable of providing intellectual titillation to a surprisingly large
number
of
people, the issue is usually discussed in terms that ignore
elementary canons of logic and evidence, and in any case is
of
little
long-term significance.* It need not detain us here. Far more serious,
and
of
the highest constitutional significance, are the revelations by
former
MI5
officers of surveillance and telephone tapping
of
a wide
range
of
political activists and trade unionists. A strong Right-wing
bias seems to have influenced the selection
of
targek3
One thing is certain: having been dragged into the light
of
public
scrutiny by the
Spycarcher
affair, the Security Service can never
recede into the shadows that previously cloaked its operation. This is
a proposition the Government has steadfastly refused
to
accept, and
the provision in the parallel but very much related Official Secrets
Act 1989 ordaining a life-long duty
of
confidentiality upon all mem-
bers or former members
of
the Service, backed by a possible two
years’ imprisonment,
is
its riposte to those who advocate greater free-
dom
of
information in this area.4 How effective this blunderbuss will
’
It
was considered by
a
Committee of the whole House in both Houses. The
Government resisted
all
amendments
to
the Bill.
For
two differing views
of
the value to be gained from the writing on this subject,
see Watt, “Fallout from Treachery’’
(1988)
59
Pol.
0.
206 and Lustgarten, “Learning
from Peter Wright’’
(1989)
60
Pol.
0.222.
Manifest in the selection of targets like National Council for Civil Liberties, Cani-
paign
for
Nuclear Disarmament, various obscure Trotskyite organisations and several
serving
or
future Labour M.P.s.
Official Secrets Act
1989,
ss.
1
and
10.
As
a
matter
of
civil law. the House
of
Lords
had affirmed the existence of such
a
duty in
All.-Gen.
v.
Guardian Newspapers Ltd.
(No.
2).
11988)
3
W.L.R. 776;
(19881
3
All
E.R.
545
(Spycatcher
11).
801
802
THE
MODERN
LAW
REVIEW
[Vol.
52
prove can only be measured by the number of articles or books
unprinted, programmes unmade or bowdlerised, and-only the tip of
the iceberg-prosecutions undertaken. That evaluation must be left
to the future. Our focus here is on the constitutional mechanisms
governing the Security Service, and more particularly its functions,
powers and accountability. All this is now to be found, though
whether exclusively is a matter of grave uncertainty, in the Security
Service Act
1989.
Before reviewing
of
its provisions, it is necessary to
understand something
of
the background to the legislation.
ORIGINS
Among the most intriguing questions concerning the Act is how and
why it came to be. Unlike MI6 (the Secret Intelligence Service),’ MI5
was an organisation that dared speak its name, though very quietly.
Its origins, which have recently received serious and thorough scho-
larly investigation,6 lay in the perceived need to combat foreign spies,
though its activities quickly spread
to
surveillance and penetration of
domestic political movements. Constitutionally, it was an emanation
of
the Royal Prerogative, that “singular and eccentrical”’ residue
of
executive power derived from common law. It is noteworthy that
three of the United Kingdom’s closest intelligence allies whose
agencies were also created under the prerogative- Australia, New
Zealand and Canada-had each previously joined its fourth (the
United States) in enacting legislative charters clearly defining their
agencies’ functions, powers, hierarchy and accountability. By con-
trast, MIS’s powers and activities were limited solely by whatever
restrictions Ministers saw fit to impose, which have taken the form
of
the Maxwell-Fyfe Directive
of
1952;
the courts would not intervene.
However, after the
GCHQ
case that judicial self-denying ordinance
was no longer absolute.’ Moreover, the
tort
of
misfeasance in a pub-
lic office, raised from the dead in the case
of
the French Turkeys,’
was quickly pressed into service against the Service, when C.N.D.
activists challenged the legality of telephone tapping carried out
against them.” That challenge failed, and Taylor
J.
erected an Ever-
est-high barrier for plaintiffs to surmount; but there remained the
’
Which maintains
its
existence in legal darkness, totally untouched by the statute
under discussion here. The same holds
for
G.C.H.Q.,
the signals intercept body.
‘
C. Andrew,
Secret Service
(London, 1985). Apart from
a
thoughtful Epilogue, the
book
stops in the early 1940s.
MIS’s
political, at times partisan, activities are explored
in Chaps.
57,
10
and pp. 481-83.
’
The phrase
is
Blackstone’s:
Commentaries,
I.
p.
239.
C.C.S.U.
v.
Mitiister for Civil Service,
119851 A.C. 374. However, Lord Diplock’s
doubts on the justiciability
of
claims
of
“irrationality” in the exercise
of
prerogative
powers,
[
19851 A.C.
at
p. 41
1.
did not suggest that the door had opened very wide. See
also
the remarks
of
Lord Roskill, [1985] A.C. at p. 418.
‘
Bourgoiti
S.A.
v.
Minister
of
Agriculture.
[
19863
Q.B.
716 (CA).
“’
R.
v. Horne
Secretary
exp.
Rtcddock
[
19871
2
All
E.R.
518. See Leigh.
[
19871 P.L.
12.
Nov. 19891
THE
SECURITY
SERVICE
ACT
I989
803
possibility that allegations of MI5 misconduct would receive public
attention and become politically controversial when aired publicly in
the courts, even
if
the plaintiff lost.
A
mainspring
of
the statute may
therefore have been to choke
off
the possibility, however remote,
of
further actions, since it determinedly attempts to preclude judicial
redress.” This suggestion, however, remains pure guesswork, since
Ministers consistently refused to explain the purpose
of
what they
were offering.
Other background factors are worth noting, even
if
one cannot
document the extent
of
their influence. One is the comment
of
the
Master
of
the Rolls in delivering a largely minority judgment in
Spycatcher
that the time may have come “when Parliament should
regularise the position
of
the service.”’2 Admittedly, Sir John
Donaldson (as he then was) has been controversially involved in con-
sultation about legislation in the past,I3 but it is unlikely that this
single line was
of
itself sufficient to set the Home Office mills a-grind-
ing.
Perhaps more influential was the European dimension. Cases chal-
lenging
MI5
surveillance have already been declared admissible by
the European Commission on Human Rights,I4 and the European
Court has already shown a pronounced distaste for the British habit
of
relying on unregulated administrative discretion in matters affect-
ing individual rights.I5 Whilst some prerogative powers in this area
probably cannot meet the requirement that restrictions on Conven-
tion freedom be “prescribed by law,” the new Act certainly will suf-
fice. It is also likely that actions taken under its authority will be
upheld under the national security/public safety “let out” clauses
of
Articles
8-11
given the rather wide margin of appreciation that the
Court
of
Human Rights allows the State parties in this sphere.16
FUNCTIONS
OF
THE
SERVICE
Since the Second World War, MI5 has operated under two non-
statutory charters. The first, the Findlater Stewart Memorandum,
was drafted by a civil servant during the War, and has never been
published. More comprehensive was the Maxwell-Fyfe Directive,
issued by the newly-appointed Home Secretary in 1952, which
‘I
See below, p. 834.
’*
An-Gen.
v.
Guardian Newspapers Ltd. (No.
2).
[1988] 3
All
E.R.
545,605.
l3
A
leaked memorandum of his meeting with the Permanent Secretary at the
Department
of
Employment led
to
adverse Press comment and questions in Parlia-
ment. See [1984] P.L. 173,175-177.
l4
Hand
If
v.
U.K.
(Application No. 12175186). Applications on behalf
of
C.N.D.
following the
Ruddock
case (note 10 above) were withdrawn in November 1988
(Application nos. 11745/85 and 13935/88).
Is
Notably in
Malone
v.
U.K.,
(1985) 7
E.H.RR.
14.
l6
See
Learider
v.
Sweden
(1987),
Eur.
Court
H.R.,
Series
A,
No. 116 and the Com-
mission’s (unfavourable) decision on admissibility in the
G.C.H.Q.
case (Application
No. 11603/85).
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