affiliated to the International Association of Constitutional Law
The recent revelations by the Guardian about the ‘United Stasi of America’ appear to have disappointed, surprised and even shocked a number of people, who ought to know better. The British government has responded in a predictably incomplete way, denying any wrongdoing on the part of our Security State, taking cover behind the robustness of our legal protections against abuse of the citizen’s right to privacy.
In the course of work that we are currently undertaking on civil liberties during the Cold War, it is clear to us, however, that activity of this kind is part of the DNA of the liberal state. The MI5 files held in the National Archives provide an insight into the surveillance activities of government, though we are not suggesting that these files give a complete or even an adequate insight. By no means all the security files have been released, and it is impossible from the catalogue to say how many have been withheld or destroyed. There is a sense that files have been released very carefully and that they have been weeded just as carefully, so that historians are restricted to officially sanctioned data that will cause minimal embarrassment to the Security Services. We are being invited to write the history they want us to write, about the people they want us to write about, based on the data they want us to find.
What is striking, nevertheless, is the suggestion to be found in the contents of the files that surveillance was taking place on a massive scale. So although only a sample of files has been released, careful reading of these files does allow for jigsaw pieces to be uncovered, helping to build a picture larger than the sum of the files themselves. Thus many files refer to other surveillance targets incidentally, because – for example – they were present at bugged meetings, the references to these individuals also containing a reference to their PF number (which we assume is their Personal File number). So a reference to Gerald Gardiner in the solicitor Harry Thompson’s file reveals that what appears to be the future Lord Chancellor was PF 723,729. This reference was in a minute of a phone call intercepted in 1946; we have encountered other PF numbers in the 1960s in the 800,000s.
In the last case the individual in question was Ruth Taylor (PF 815,946) who had the good fortune/misfortune to be the niece of John Gollan, sometime General Secretary of the Communist Party. Her file appears to have been destroyed, along with the files of all the other people related to John Gollan about whom a file appears also to have been kept: his father, his wife, his brother and his three sisters. We assume that files were kept on each of the foregoing because their names and PF numbers all appear on the front of John Gollan’s file in some weird cross-referencing system. We are trying to make sense of this, and trying to understand whether it can really be the case that by the mid 1960s, as many as 815,946 people were or had been under surveillance. Perhaps Security Service lawyers will be able to offer an alternative explanation in the comment section below.
What is also striking about the files is the nature of the information that is retained and now published, in relation to people who were ‘innocent’ of any offence. So we find transcripts of intercepted phone calls about the marital problems of a Communist Party employee (and the recording of tittle tattle of a personal nature about her apparently feckless husband); claims that a sometime Member of Parliament enjoyed the extended embrace of a prostitute; and reports of intense surveillance of a barrister (later to become a High Court judge) who was revealed incidentally to have had a French mistress in the West End. The surveillance in this last case – for reasons that were wholly groundless – included a period during which the individual in question was followed wherever he went, his phone tapped and his mail intercepted, before the penny dropped that a crass mistake had been made. That has not prevented the fruits of that surveillance to be published.
But of course this is only a very small part of it. It was the political stuff they were really after. In the case of selected parliamentary candidates and MPs there are detailed Special Branch reports of election meetings and election campaigns. The latter included details of the identity (and PF numbers) of the individuals in the constituency who displayed election posters supporting a candidate, as well as the owners of ‘motor cars’ used during the campaign (for example to take electors to the polling station). Yet it was not only politicians, lawyers and academics. Other prominent figures were also the target of surveillance, including Kingsley Martin (PF 41,632), a leading pacifist who was editor of the New Statesman. According to a Special Branch report, Mr Martin addressed a meeting in London on 27 March 1952 organized by the London Anarchist Group. In the presence of 650 people, Mr Martin said that:
There was a creeping plague of injustice and tyranny evident in the world today . . . The Middle Ages were almost kindly in comparison with Europe today, There were however a few patches of freedom left. He spoke of the methods adopted in Spain of making prisoners confess through cruelty . . . and said that such confessions were accepted at the trials. It was the law in Spain that people must adopt themselves to the existing regime . . . . A steady policy is needed of encouraging resistance in Spain, Franco is now sensitive to criticism as he wants to join the Western Community. We must force the Government to say to the Spanish government ‘As you are today , the British People will not take you as allies and friends’.
That was enough to justify surveillance and retention. It seems they were trying to work out whether he was a communist or not. If so, so what? Like countless others, Martin’s foreign travel was monitored – not only at the airport where surreptitious Special Branch baggage searches took place, but also on arrival. His visit to Kenya in November 1952 caused some concern for the diplomatic corps there, a British official contacting London to say that Mr Martin’s ‘outspoken views on racial discrimination [to which he was opposed] and remarks that terrorism can not be attributed to Mau Mau have naturally irritated local authorities’. A security check was requested, following which the reply came that Martin was ‘not known to be a member of the Communist Party’, but that he was a pacifist who had for a long time been an active member of the Union of Democratic Control and was probably still a member of the National Council of Civil Liberties (about which there was also a file in the OF series; the NCCL appears to have been OF 561/1).
Which brings us back to the confected public reaction to the allegations about the US and UK security agencies, a reaction that reveals remarkable naivete on the part of those who are ‘disappointed, surprised or even shocked’. A day at the National Archives will quickly reveal that the British state has been engaged in massive surveillance of individuals and organisations on a potentially eye-watering scale, and in the process stored information on people’s personal lives that is now being fed – intentionally or otherwise – into the public domain to tarnish their reputations posthumously, perhaps in the process revealing to the wider public details about them that is unknown to their surviving families. Apart from the above, we also have detailed character assassinations of those now deceased, including in at least one case the wife of another prominent lawyer, the latter having been very closely watched for very many years.
Quite apart from the absurdity of William Hague’s suggestion that the only people now under surveillance are the guilty and that law abiding citizens have nothing to fear (to which Paul Flynn MP had the perfect answer), the Daily Mail reader who believes such nonsense might want to think again. It may well be true, and it may well be inappropriately cynical to believe that the government’s assurances are about as valuable as HBOS shares at the time of the banking crisis. For as Mr Hague reminded us, we have robust legal procedures now in place, including the much – celebrated Human Rights Act 1998 and the culture of liberty it has blown through government departments. There are no doubt some amongst us who will wish to assume that as a result no such surveillance goes on – whether by or on behalf of the British government, and that as a result the US Constitution is a poor substitute for our timely incorporation of the ECHR into domestic law.
Keith Ewing Joan Mahoney Andrew Moretta
Suggested citation:K. Ewing, J. Mahoney, and A. Moretta ‘Surveillance and the Liberal State’ UK Const. L. Blog (16th June 2013) (available at http://ukconstitutionallaw.org)