MI5 defies EC ruling
01 January 1992
The Security Service Tribunal has confirmed that MI5 is still holding files on two former workers at the National Council for Civil Liberties (Liberty) despite a ruling by the European Court of Human Rights last year that this breached Article 8 of the European Convention on Human Rights which guarantees respect for private life.
MI5's F branch, responsible for domestic subversion opened files on Harriet Harman, now a Labour MP, and Patricia Hewitt, now with the Institute of Public Policy Research, when they were respectively the Legal Officer and General Secretary of NCCL.
Liberty wrote to the Security Service Tribunal, which was set up under the Security Service Act 1989 to investigate complaints, to ask if the files had been destroyed. It received a series of tortuous letters. The first letter in July said it intended to treat the complaint as being that MI5 had "unreasonably" made them the "subject of its inquiries" since the Security Service Act 1989 came into force on 18 December 1989. It went on to say that the Tribunal had no powers to investigate "the assumed continued holding" of personal information. But when investigating whether inquiries post- December 1989 were unreasonable it might use its powers under paragraph 7(2) of Schedule 1 (i.e. to refer for investigation whether MI5 has in any other respect acted unreasonably) if it made no determination in favour of the complaints (i.e. if it did not uphold them). In this case it would ask the Commissioner to investigate:
"whether the Security Service has acted unreasonably (whether or not in breach of Section 2)... by continuing (if they do) to hold personal information..."
Section 2 of the 1989 Act states that the Director-General of MI5 shall ensure that "no information is obtained" except as necessary for the discharge of its functions (Section 2(a)). The functions referred to being the "protection of national security" from "actions intended to overthrow or undermine parliamentary democracy by political industrial or violent means" (Section 1(2)).
By October the Tribunal had decided that "no determination" could be made on the complaints but that it had decided to refer the matter outside its jurisdiction - "the alleged continued holding of personal information" - in breach of Section 2 to the Commissioner. The letter ends by stating this decision "carries no implications either way as to whether the Security Service continued to hold (or ever held) personal information upon all or any of the complainants".
Letters from the Security Service Tribunal, 5.7.91 & 18.10.91; Guardian, 7.12.91.