MI5's secret search warrants (1)
01 January 1991
MI5's secret search warrants
artdoc June=1991
The first annual report of the Security Service Commissioner, the Rt Hon
Lord Justice Stuart-Smith, published in March, contains no figures on the
number of search warrants issued to MI5 (the Security Service) by the Home
Secretary. Nor were any of the 55 complaints made by members of the public
upheld by the new Tribunal.
Judge Stuart-Smith says that it would not be `in the public interest' to
give the figures. He justifies this decision because of the `comparatively
small number of warrants issued' under the 1989 Security Service Act. He
also says the Act has a more limited purpose than the Interception of
Communications Act 1985 for which figures are published. The published
figures for the number of warrants for telephone tapping and mail-opening
were 315 at the start of 1989, with a further 522 issued during the year.
It is therefore not clear what a `comparatively small number of warrants
issued' means.
The Security Service Commissioner was appointed by the last Prime
Minister, Mrs Thatcher, under the provisions of the Security Service Act
1989(SSA).
The Act was the first to recognise the existence of MI5, the internal
security agency, since its formation in 1909. The role of MI5 is defined
in the Act as:
the protection of national security and, in particular, its protection
against threats from espionage, terrorism and sabotage, from the
activities of agents of foreign powers and from actions intended to
overthrow or undermine parliamentary democracy by political,
industrial or violent means... (and) to safeguard the economic well-
being of the United Kingdom against threats posed by actions or
intentions of persons outside the British Islands. (Italics added)
It thus officially recognises the working definition of `subversion' (in
italics) used by MI5 and the Special Branch since 1970 to justify the
surveillance of political and trade union activists.
The Act allows MI5 to apply to the Home Secretary for a warrant to enter
and/or interfere with property, that is, to secretly enter a home or
office; to steal or plant material; and to install listening devices. It
created the post of Security Service Commissioner whose job is i) to review
the issuing of warrants; ii) to forward cases where the Tribunal finds
evidence of unlawful actions by MI5 to the Home Secretary with a
recommendation for compensation to be paid. The Tribunal is comprised of
between three and five lawyers appointed by the Queen.
When it investigates complaints - about `interference with property' or
the passing of derogatory information to an employer (e.g. the Civil
Service or defence contractor) - the Tribunal has to decide if MI5 acted
properly. In deciding whether MI5 acted within its powers MI5 is able to
argue that it had `reasonable grounds for believing' that the person was
or is a member of a:
category of persons regarded by the Service as requiring investigation
in the discharge of its functions...
The example of a particular `category' used in the Commissioner's report
is that of `a subversive organisation' (para 22).
The Tribunal is not allowed to give any information to a complainant
except where it makes report to the Home Secretary to recommend
compensation because it decides MI5 has acted outside of its remit. With
this exception it is not allowed when turning down a complaint to say
whether or not a person was or was not subject to surveillance. Moreover,
the decisions of the Commissioner and the Tribunal `shall not be subject
to appeal or liable to be questioned in any court' (para 5.4).
The Commissioner's first report states that applications for warrants can
be made to the Northern Ireland Secretary as well as the Home Secretary,
and indeed to any Secretary of State in emergency if the Home Secretary is
unavailable. The report makes clear that search warra