The media frenzy which this book generated, and the fear and loathing it engendered at the very highest levels of the British government, may by now have receded into history; but the protracted legal shenanigans by which the government sought to suppress it, and its publishers and others sought to escape that gagging, are still there for all to see in the law reports.

Before Spycatcher, Her Majesty’s Secret Service may not have been as glamorous as the club-like institution portrayed in the Bond stories, but it was a good deal more secret. True, the British establishment had been rocked by a series of revelations about Soviet “moles” or double-agents, including that unholy trinity Kim Philby, Guy Burgess and Donald Maclean, followed, rather more recently, by the “fourth man”, Anthony Blunt, in turn raising the spectre of a “fifth man”. (Indeed, one of the themes of Spycatcher concerns who this might be.) The truth about these scandals emerged only fitfully, parcelled out in small doses like a drug too much of which might kill rather than cure.

There had also been a number of instances of civil servants in non-secret government departments being accused of breaching the Official Secrets Act 1911, which every civil servant signs an undertaking not to breach (a fatuous procedure rather like signing a contract with your local police force undertaking not to commit any crimes). Such cases usually involved leaks to the press of some matter about which the government would prefer to preserve the voting public from too intimate a knowledge. Cases were also be brought against journalists to whom such leaks were made, or who for some other reason appeared to “know too much” about something that was supposed to be secret. Trials of such cases were often themselves shrouded in secrecy and obfuscation, apparently in an attempt to conceal, even from the jury, what exactly was going on, or at any rate who was involved in it.

When I was a student there was a case about defence communications which became known as the “ABC” trial, not just because the defendants were named Aubrey, Berry and Campbell, but also because those letters of the alphabet were used to conceal the identities of certain witnesses. The whole thing descended into farce as it rapidly became clear to the press who “Lieutenant-Colonel A” and “Colonel B” and “Mr C” really were and before long they, too, were “outed”. The trial was notorious for other reasons: it transpired that the jury had been rigged, or at any rate “screened”, and that three of its members had signed the Official Secrets Act, while the foreman was a former SAS officer. When, despite the judge’s indication to the contrary, the matter was reported, a re-trial was reluctantly ordered. For further details, see Magrath, Official Secrecy and the ABC Case (1980) 13 Bracton Law Journal 88.

Despite these absurdities, it remained the assumption of the British government that the best and possibly the only effective way of preventing publication of material on grounds of national security was by bringing a prosecution under the Official Secrets Act 1911. The Act had been passed in a moment of panic during the build-up to the First World War, when it was feared that the country was about to be overrun by German spies. A novel by Erskine Childers, The Riddle of the Sands, published in 1903 and generally regarded as the first true spy novel, contributed to the Edwardian precursor of Cold War paranoia. The 1911 Act was not in fact the first attempt to legislate in this field. In 1888 a Breach of Official Trust Bill was presented to Parliament, designed to deal with embarrassing disclosures to the press by civil servants. This was re-drafted to include provisions designed to deal with spying, and became the Official Secrets Act 1889. But the 1911 Act imposed much tighter controls, in particular as against the press. It remains the principal Act, though its provisions have been amended by two further Official Secrets Acts, dated 1920 and 1939. Section 1 of the 1911 Act is titled “Penalties for Spying” and is supposedly concerned exclusively with espionage, though its provisions were later held to apply to peace protesters demonstrating at a US air base: see Chandler v Director of Public Prosecutions [1964] AC 763. Section 2 is the famous “catch-all” section under which it is an offence to communicate, or to receive, information obtained as a result of service under a Crown or government contract. It was this provision that was commonly used to prosecute both the civil servants who leaked sensitive material and the writers, journalists and publishers who then disseminated it to the public.

The elastic ambit of section 2 of the 1911 Act, in particular, was widely criticised and during the 1970s various attempts were made to reform it, most substantially through the recommendations of the Franks Committee Report (1972) (Cmnd 5104). When Margaret Thatcher swept into power in 1979, one of her government’s first acts was to introduce a Protection of Information Bill, which was intended to tighten up the existing law while applying it to a narrower range of information. This was hailed in the press as evidence of an intention to create a “police state”. (Plus ça change.) Before the Bill had its third reading it was withdrawn as a result of the Blunt affair. A book by Andrew Boyle entitled The Climate of Treason (1979) had stirred up speculation as to the identity, then unknown, of the “fourth man” in the Philby-Burgess-Maclean affair. The book mentioned Blunt without so identifying him, but the truth was revealed by the magazine “Private Eye”, and an embarrassing admission forced from the Prime Minister in Parliament. She, it transpired, had not been informed of the fact that Blunt had already confessed more than a decade earlier, and been officially pardoned. Following his unmasking, Blunt had continued to work as a servant of the Crown, in his capacity as Surveyor of the Queen’s Pictures, and was even knighted for his services. (His dishonour becoming public, he was stripped of this honour.) His relationship with the Queen whose pictures he surveyed, and to whom he was even related through her mother, forms the subject of Alan Bennett’s teasing play, A Question of Attribution (1989).

Boyle’s book was followed by others, including Chapman Pincher’s Their Trade is Treachery (1981), which discussed the identity of a possible “fifth man” in the wake of the Blunt affair, as well as revealing a good deal else about the shadowy and illegal workings of the secret service. It subsequently transpired that much of Pincher’s material had been provided by Peter Wright, but as this was not apparent at the time, and as Pincher was only a writer, a putative outsider whose work was “deniable” by the Government, no serious attempt was made to suppress it, let alone prosecute the author for what was obviously a flagrant breach of section 2 of the 1911 Act. When Peter Wright republished much of the same material under his own name in Spycatcher, the Government seems to have taken the view that it was much more damaging simply because it appeared to come from the horse’s mouth. As with the ABC case, it was not the content (which was available elsewhere) that was deemed offensive so much as the way it was being packaged. Unfortunately, Peter Wright was now living in Tasmania, and the book was being published in Australia, outside the jurisdiction of the British  Official Secrets Act, so no prosecution could be brought under the Act, even if this had been desired.

Whether such a prosecution would have been successful is in any event questionable. In 1984 a civil servant at the Ministry of Defence, Clive Ponting, had been prosecuted under section 2 of the 1911 Act for leaking documents about the sinking of the Argentine warship General Belgrano during the Falklands War: despite the judge directing the jury that the “public interest is what the government of the day says it is”, they acquitted Ponting. This unexpected result betokened a sea-change in public attitudes to official secrecy from which one can infer that any similar prosecution brought against Wright or his publishers might have proved just as futile.

Instead, an injunction was sought on the basis that Wright, as a former public servant, had breached an implied term of his employment contract imposing on him a lifelong obligation of total  confidentiality. The Government claimed that every line of the book was confidential, if it contained information obtained through Wright’s work for MI5, regardless of whether it was already available elsewhere, or harmless. And so began one of those great sagas of litigation in which everyone except the losing party can see the sheer folly of pursuing the matter through the courts — a process only made worse by the fact that much of the litigation took place in Australia, a place where, traditionally, respect for authority has been tempered by robust and earthy scepticism.

That was certainly the attitude adopted by Malcolm Turnbull, the Australian barrister who represented Wright and his publishers, Heinemann, and who later wrote his own book on the affair, The Spycatcher Trial (1988). In this he confesses that he never expected the British government to take the matter to trial. He thought they would settle after agreeing a number of cuts of potentially damaging matter in the book, leaving what was already in the public domain intact. He certainly never expected that they would send Sir Robert Armstrong, the Cabinet Secretary, to submit himself to be cross-examined on why the British government had failed to bring a prosecution over Pincher’s book, let alone that Armstrong would delight the world’s media, and earn himself a place in every contemporary quotation book, with his priceless admission that, in giving a “misleading impression” (in a letter to Pincher’s publishers, implying that government agents had not secretly examined the book in advance of publication when in fact they had), he was not actually lying but merely being “economical with the truth”.

While the injunction against Australian publication was being fought over in Australia, a number of British newspapers obtained and published or attempted to publish material from Spycatcher in this jurisdiction, thus spawning yet more litigation as the Government sought yet more injunctions, in which endeavour they ultimately failed, the cat being comprehensively out of the bag and the horse having long since bolted, in spite of all attempts to slam the stable door, once the book had been published abroad (notably in the USA).

In Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 the House of Lords held that “members and former members of the Security Service owed a lifelong duty of confidence to the Crown” and that “a third party in possession of information known to be confidential was bound by a duty of confidence unless the duty was extinguished by the information becoming available to the general public or the duty was outweighed by a countervailing public interest requiring disclosure of the information”. The report in the Appeal Cases contains a comprehensive survey of the English proceedings and covers all the substantive judgments from Scott J at first instance, through the Court of Appeal, to the House of Lords. For reports of interim hearings against the newspapers, see  Attorney General v Guardian Newspapers Ltd [1987] 1 WLR 1248 and Attorney General v  Newspaper Publishing plc [1988] Ch 333, CA. Some of the newspapers subsequently took the case to the European Court of Human Rights, which held that the Government had infringed their rights under article 10 of the European Convention on Human Rights, since any exceptions to the right of freedom of speech “must be narrowly interpreted and the necessity for any restrictions must be convincingly established” (which they evidently hadn’t been in this case): see The Observer and The Guardian v United Kingdom (1991)14 EHRR 153, para 59. [to check]

Though castigated for his cupidity (Spycatcher, boosted by all the free publicity provided by the British government, eventually made him a millionaire), Peter Wright’s real motive was a sort of professional vanity: he had an axe to grind, about the way the secret service had been run, and wanted his claims and obsessions to be taken seriously. He had been employed to hunt for Soviet moles in the service and when he thought he’d found them, and in particular when he thought he’d found the “fifth man”, whom he identified as Roger Hollis, a former Director General of MI5, he was annoyed that his claims were, in the timeless manner of civil service circumlocution, not acted upon. He was also annoyed when, owing to a bureaucratic cock-up, he was denied the full value of his pension, and initially wrote the book only to get enough money to live out his retirement in Tasmania.

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