Secrets and Lies: David Shayler

The more we hear about David Shayler, the less it is clear quite what problem he actually poses for the British state. In both his interviews and his work with Mark Hollingsworth and David Fielding (Defence of the Realm, Andre Deutsch 2000) Shayler has never hidden his reactionary agenda. Shayler - an ex-MI5 operative who has yet to express substantive disillusion with the aims and objectives of the organisation he once so loyally served - has become a cause celebre for the soft left and liberal intelligentsia. Reading between the lines, you can't help but wonder whether that wasn't the point all along. By flocking to his cause, the left has become caught up in designs it would otherwise have balked at embracing.

Shayler expected his career with Ml5 to be a "career for life". He resigned only when his advice about how to make MI5 more effective as a "counter-terrorism" force was rejected. Shayler's critique, in essence, is that

"M15 was unsuited and unable to act as an anti-terrorist agency. Its obsession with bureaucracy and procedure combined with inertia and lack of initiative by senior officers prevented vital decision-making that might have saved lives and millions of pounds of public money" (Defence of the Realm p5).

As Hollingsworth and Fielding observe,

"Unlike past M15 whistle-blowers and 'defectors', Shayler is not motivated by political, ideological or even moral factors. His primary concern is what he witnessed as the lack of accountability, excessive secrecy and the bungling incompetence of Security Service operatives.”

Shayler's solution to the management problems of Mt5 is straightforward:

''There is not one European Community country that has succeeded in defeating terrorism without first establishing a proper, national central agency." (ibid pi4o)

That this agenda is one which should be problematic for the left ought to go without saying.

There are, though, a number of agencies whom we would expect to be singularly untroubled by such loose talk, not least because Shayler's designs are theirs also. Most notably, the Metropolitan Police Special Branch who lost out to MI5 in the bidding war for control over anti-terrorist activities (and budgets) at the end of the Cold War. Similarly, Jack Straw at the Home Office whose agenda for retooling the state has incorporated both the development and extension of the National Criminal Intelligence Service and its links with EUROPOL, the parallel expansion of the definition of terrorism (the Terrorism Act) and the implementation of the expansion of pan-European and EU-USA security co-operation as per the 1993 Birmingham G8 summit agreement on high-tech crime;

"The main obstacle facing a G8 achievement of any goals set out in Birmingham appears to be the barrier of red tape obstructing law enforcement agencies from co-operating across national jurisdictions. The G8 will need to address the inconsistencies between justice systems from one member country to another if the problem of international crime is to be dealt with effectively." (UK Presidency address to G8 summit 1999).

Shayler's case isn't the only time the liberal left have been hoodwinked into following a pro-state agenda since New Labour came to office. The link between the Terrorism Act, the Human Rights Act and the Regulation of Investigatory Powers Act appears to have escaped organisations such as Justice and Liberty entirely. Yet it is simple enough. Incorporation of the European Convention on Human Rights into UK law is no more than a necessary part of the process of the creation of a European wide security state. It is in effect a rationalisation of UK procedures in line with European norms. The HRA merely introduces the fictions of "transparency' and "accountability" into previously unregulated areas of surveillance and repression. The point of the expansion of the anti-terrorism agenda through the Terrorism Act is in part to allow more room for opting out of Convention rights under Article 15 (“in time of war or other such emergency threatening the life of the nation." ) The more acts that are defined as "terrorism"[/i], the greater the scope for opting out.

The nature and extent of state surveillance has been highlighted by recent use of surveillance evidence in major trials. The European Convention leaves the UK badly exposed in such matters. Privacy under the Convention can only be lawfully interfered with if 'necessary', and if surveillance is carried out in accordance with the law. In effect, surveillance has to be regulated by statute if it is to comply with the Convention.

Straw's answer is the Regulation of Investigatory Powers Act (RIPA), which covers the interception of communications (including mobile phones and emails), the power to demand communications data and decryption of unintelligible material and the use of covert operations and surveillance. Such activities will be authorised by a warrant issued by the Secretary of State or other authorised officer (judges will play no role in the issue or scrutiny of warrant applications).

The "complaints" mechanism established under the Act mirrors that set up under the Interception of Communications Act 1985, following a European Court ruling where a violation of the Convention was found to have occurred because the UK's system of telephone taps was not regulated by law. The tribunal system set up fifteen years ago has not upheld a single complaint. The RIP tribunal will meet in secret, will not give reasons for its decisions and won't consider complaints about activities that occurred more than 12 months ago. Applicants will not be allowed to attend or have access to documents upon which the tribunal might rely in making its decisions. Tribunal decisions are not subject to any form of appeal.

It could be argued that the rulings of the European court afford less protection in regard to matters such as torture, illegal obtaining of evidence, and invasion of privacy than UK domestic law. The point is that the liberal left flew into a fit of joy at the first sight of the Human Rights Act, without noting its context in relation to New Labour's wider security agenda. In rushing to embrace Shayler so quickly they may be making a similar error.

There are, after all, aspects of Shayler's tale which don't add up. Not least his claim that he joined MI5 in the autumn of 1991. By October 1992 he had become one of the founding members of the T[errorism] Branch team which had won the battle with Special Branch to investigate IRA activities on the mainland. Given the political sensitivity of the MI5 take-over and the resentment it caused, would a raw recruit, fresh from the Sunday Times, have been pushed forward so soon? Might it not be worth at least speculating as to an involvement with the security services predating 1991?

Shayler has admitted that work during this period involved studying intelligence reports on IRA activities in the north east, including more widespread surveillance of the pro-Republican left. If Shayler had any progressive intent, it would be reasonable to expect him to disclose such activity (after all, he was happy to disclose MI5's files on members of the New Labour cabinet) and MI5 surveillance techniques more generally. There are considerable precedents for this - Fred Halroyd and Colin Wallace most obviously, but Philip Agee in relation to the CIA also, all comes to mind. Shayler has made no such attempts at disclosure, Instead, most recently in The Guardian on 20/9/00, he attempted take the glory and credit for the arrest of IRA members Sean McNulty, Hugh Jack and Rob Fryer and-the highlighting of the deficiencies of his superiors at this time. On that basis, it's only fair that we reflect on some of the facts omitted from his account.

Sean McNulty was jailed in 1994 for explosions in April and June 1993 at oil and gas depots in Tyne and Wear. Shayler claims that the breakthrough in McNulty's arrest came after the June explosion, when he saw a surveillance photograph of Sean McNulty entering Hugh Jack's home. Yet McNulty had been under surveillance for over a year (as admitted by both Shayler and the security service prosecution witness Mr A, at his trial.) Evidence against McNulty was almost entirely circumstantial, based upon surveillance operations, and evidence of his political convictions from his ex-girlfriend, and mother of his child, Amanda Johnson. Here conies the bit our hero misses out. Arrested alongside Sean McNulty were his father and mother, Bernard and Dorothy McNulty, sister Annette Walker and uncle Niall Cornelius McNulty. All three of the McNultys were held on remand from June to October 1993, and Annette Walker was held until December 1993, All were eventually told that the Crown did not intend to proceed against them - but not until November 1994, three months after Sean McNulty was jailed. We might speculate that the fate of the McNultys could have intimidated Amanda Johnson into giving evidence against Sean. But there's more. By the time the prosecution moved to put the family out of their misery, Bernard McNulty was dead, having suffered a heart attack which the family believe was a direct result of his arrest. If Shayler is so quick to claim the glory for his surveillance work he appears equally keen to refuse moral responsibility for Bernard McNulty's death, having not as yet mentioned the details of the McNulty case given here.

As regards Rob Fryer and Hugh Jack; during their trial it was claimed that the skilled surveillance operatives following Hugh Jack lost track of him for a period of 8 minutes, during which time he purportedly concealed in woodland the bomb-making equipment later attributed to him. All records of the search which unearthed this equipment were destroyed. Senior army officers involved in the search were not called to give evidence at the trial. Surely this is the kind of “inefficiency" and "incompetence" that Shayler would normally be all too keen to shoot his mouth off about? At the trial, thirteen MI5 agents gave evidence against the two - shielded from the defendants, the media and the public. Public Interest Immunity Certificates were placed an original notes and logs drawn up by MI5. The defence was given only copies of edited notes, on which ESDA1 tests were impossible. During the trial it emerged that MI5 witness notes served were incomplete and often not contemporaneous. The McNulty, Jack and Fryer cases marked the commencement of a process of "securitisation" of IRA trials which made a fair bearing almost impossible. As John Wadham of Liberty (now Shayler's solicitor) said at the time "The use of MI5 for the investigation and prosecution of offences means that defendants subsequently prosecuted lose their right to a fair trial." It should be noted at this point that Shayler's critique suggests that in his view the security services weren't being hard enough.

The Shayler case ought to pose a dilemma for his supporters on the liberal left. Given Shayler's declared agenda of making more efficient the investigatory and repressive capacities of the secret state and critique of the deficiencies of the security services - given his consistent silence over his activities against the pro-Republican left, and given the coincidence of his critique with the Home Office/Europol agenda, the likes of Liberty and the rest have a decision to make - with or against the state. You can't have it both ways.

• 1An electrostatic detection device, EDD or ESDA, is a specialized piece of equipment commonly used in questioned document examination