MI5's secret search warrants
01 May 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. (Emphasis 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 warrants are issued not just against individuals but also for organisations (para 4) and that MI5 fronts applications from other agencies(para 3)