Politics
Secrecy laws will never be the same
Published 28 August 2000
The government's backdown over the Shayler affair is a sure sign that changes are afoot for freedom of expression
On Tuesday evening, in a room over a pub in Westminster, the former intelligence officer David Shayler held a party for journalists, friends and family who had supported him in his three-year battle against the British government. A simple chalk-board with the two words "Shayler Party" pointed the way to an event that many would have thought impossible even a month ago.
It was a quiet and respectful gathering for a man whose greatest crime, in many people's eyes, has been his hunger for publicity. Shayler has been systematically vilified for blowing the whistle on a system that the Labour government promised to reform when it was in opposition. The Foreign Secretary, Robin Cook, has called him a fantasist, and members of the shadow cabinet have touted MI5 smears about his character and abilities as an intelligence officer.
He has been portrayed as an uncouth football yob by the Sunday Telegraph and described as "disgusting and self-serving" by the Daily Telegraph. Even the Sunday Times, which has grate- fully used some of Shayler's more remarkable revelations to fill its otherwise lacklustre front pages, suggested that he was leaving France with "not much to show after three years spent fighting MI5".
In the event, Shayler's return to Britain could not have been more dignified. Where he might once have played the clown in the media circus that surrounded him, last week he was very much the ring-master, controlling proceedings from the moment he arrived in Calais on Sunday afternoon. For once, his timing was perfect. When he made his original revelations in the Mail on Sunday in August 1997, they were blown off the front pages by the death of Princess Diana. Three years on, in an otherwise quiet news month, his arrival on British soil occurred after the same day's announcement by the Russians that all the men on board the submarine Kursk had perished, and just before the explosion of loyalist violence in Northern Ireland had begun to dominate the news agenda.
The events of the past week have been remarkable, not least because the authorities have dropped all charges against Shayler except those relating to the disclosures made to the Mail on Sunday in 1997. These referred to a culture of drunkenness and incompetence within MI5, and said that the intelligence services had kept files on leading Labour politicians, among them Jack Straw and Peter Mandelson. Even under the strict rules of the Official Secrets Act, these can hardly be said to have damaged national security. No mention was made of the later, far more serious revelations about British intelligence failures surrounding the 1993 bombing by the IRA of Bishopsgate, in the City of London, and the Israeli embassy bombing of 1994. Nor did the charge mention the disclosures about Khalifa Bazelya, the Libyan intelligence officer who led the British intelligence services a merry dance while they tried to recruit him. He was expelled from the UK in 1995, shortly after the murder of the Libyan dissident Ali Abuzeid at his grocer's shop in west London, for harassing opponents of the Gaddafi regime and recruiting agents.
The really significant omission on the charge sheet is the most highly publicised case of all, the alleged MI6 plot to kill the Libyan leader Colonel Gaddafi in 1995-96. However, in a separate development, Special Branch has now confirmed that it is investigating the Gaddafi plot and wishes to interview Shayler about it.
When Shayler emerged from Charing Cross police station on Monday, I had more reason than most to welcome his statement that he would continue to speak out against abuses of the Official Secrets Act. Just last month, my newspaper, the Observer, and its sister title, the Guardian, won a long legal fight, which established beyond doubt the freedom - some would say duty - of the press to investigate Shayler's more serious allegations without fear of prosecution. Since March, the Special Branch of the Metropolitan Police had been trying to force the newspapers to hand over any documents relating to Shayler's allegations about the Gaddafi plot. In the Observer's case, this referred to a story I had written on 27 February 2000 entitled "Two spies named in Libya plot". This explained that the Home Secretary, Jack Straw, had received a letter on 24 November 1999 naming the two MI6 officers alleged to have been involved in the assassination attempt on Gaddafi. Their codenames, PT16 and PT 16B, were already widely known. It also gave details of individuals within MI5, including Shayler's boss, who could back up his story.
Instead of investigating the alleged crimes, the police instead believed they could use evidence gained from the Observer to nail Shayler. They therefore sent us a production order under the Police and Criminal Evidence Act requesting "any and all information relating to the publication of this article and any documents which may be in your possession or control that may assist the inquiry". When the case originally came to court in March, the judge decided in favour of the police, but when it came to judicial review in July, Lord Justice Judge could not have been more emphatic: "The story of the Gaddafi bomb plot is either true or it is false, and unless there are compelling reasons of national security, the public is entitled to know the facts, and as the eyes and the ears of the public, journalists are entitled to investigate and report the facts."
It is now clear that the Official Secrets Act is in serious trouble. The Attorney-General can still drop the prosecution against Shayler and, if he does, the OSA is a dead duck. If not, it will not sit easily alongside the new Human Rights Act, which will enshrine the European Convention on Human Rights in English law on 2 October. The Official Secrets Act has no public interest defence, and Shayler's solicitor, John Wadham, will test whether this is compatible with Article 10 of the convention, which guarantees freedom of expression.
Whatever happens, there remain important questions about the decision not to charge Shayler on his more serious disclosures. At three separate court hearings involving the Observer and the Guardian, we were told that the documents were required for an investigation into serious breaches of the Official Secrets Act. Can the case have been so weak that the only way the authorities could get evidence was by pursuing journalists through the courts? Or were there more cynical reasons for dropping the case - for example, that the intelligence services didn't want serving officers on the witness stand? Or did the government not want ministers called at a high-profile trial in the run-up to the election?
It makes me angry that public money was spent harassing journalists when there had been no investigation by the police or parliament into Shayler's allegations. We were punished for doing other people's jobs for them.
One notable absence from the party on Tuesday was Julie Ann Davies, the Kingston University mature student who was arrested in March in connection with the Shayler case. On Monday, as a loyal member of the Shayler campaign, Julie Ann had travelled back to England from Calais with the former MI5 officer and his girlfriend, Annie Machon. A day later, Julie Ann was told that her case had been dropped, but she was too exhausted to party. She was never told what she was suspected of, except the conveniently vague "serious breaches of the Official Secrets Act", but Special Branch seized her possessions, kept her in a cell for several hours and forced her university to hand over logs of all her e-mails and telephone calls. The stress of the case meant she dropped out of her course; she has now been forced to move out of her halls of residence by the university. Her lawyers are considering suing the police.
In November, the government will be caused further embarrassment when the case of the former army officer Nigel Wylde comes to court. Wylde is accused of passing information about surveillance to the author Tony Geraghty for his book about the Northern Ireland conflict, The Irish War. The Attorney-General is reviewing the case, and Wylde's lawyers are confident of victory. It is thought that government lawyers are awaiting the result of this case to decide whether to proceed with Shayler. And the Treasury Solicitor will almost certainly look again at the case being brought against the editor of Punch magazine for publishing details of Shayler's allegations about intelligence errors without which the Bishopsgate bombing might have been prevented.
We will probably never know who is behind the sudden change of heart over Shayler, but I have been told by security sources that Jack Straw has taken personal control of the case. Straw told the Observer this year that he had seen Shayler's letter of November 1999 and was assessing its contents. It is unlikely, however, that the Home Secretary will be able to stifle further press interest in the Gaddafi plot. The names of PT16 and PT 16B have already appeared on the net; it is only a matter of time before further contents of the letter reach a more public arena.
The onus is now on the media to investigate further Shayler's outstanding allegations. When parliament resumes, MPs should be urged to demand that the Commons Intelligence and Security Committee finally agree to launch an investigation into each of Shayler's claims, or, preferably, an inquiry into the whole "Shayler affair". If not, there will be increased pressure from Robin Corbett, the chair of the Home Affairs Select Committee, who is eager to take over the functions of the ISC for himself.
Much has changed in the three years since the original Mail on Sunday article. The government must regret not negotiating a deal with Shayler long ago. It is quite extraordinary that those pursuing him believe they can put such a large and troublesome genie back in the bottle by pretending that those three years simply never happened. Now they are likely to look foolish, whether they press ahead with prosecution or not.
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