Unusually, it is not just the participants who remain anonymous, but even the very fact that there is a dispute is veiled in secrecy.
The new Supreme Court, introduced last week to replace the Judicial Committee of the House of Lords, has two important cases on its agenda which directly concern MI5.
The first is a challenge to the High Court ruling that terrorist suspects who have been served with banning orders should be informed about the nature of the allegations against them. The five defendants won their case before a judge in the High Court but lost in the Court of Appeal so now the matter is to be considered by a panel of seven of the country’s most senior judges sitting, for the first time, in the palatial old Middlesex Guildhall on Parliament Square.
MI5 considers the five men to be dangerous, and some of their alleged links to Al-Qaida have been made public, but the Security Service is anxious to avoid disclosing the full evidence for fear of compromising ‘sources and methods’, the conventional term for protecting informants, physical surveillance operations, telephone taps and other listening devices.
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The other legal case also has some major constitutional implications because, unlike the other defendants, the litigant is an MI5 officer who has spent the past two years locked in a secret battle with the organization over his right to publish his memoirs.
No mention of it has appeared in any newspaper because of the gagging orders imposed by one of the first judges involved. So, unusually, it is not just the participants who remain anonymous, but even the very fact that there is a dispute is veiled in secrecy.
Under the terms of the Human Rights Act, MI5 personnel can write about their experiences provided their disclosures do not impinge on national security. This was the loophole exploited by Dame Stella Rimington who had been so assiduous in silencing others when she had been director-general. Her decision to publish Open Secret made her the object of much criticism and she is conspicuously absent from the list of those invited to celebrate the organisation’s centenary in November.
‘Mr B’, as he is known, insists that his manuscript contains nothing that would harm MI5, but the Security Service lawyers insist that the arbiter of what is, or is not classified, should be the tribunal created by the Regulation of Investigatory Powers Act, which sits in private. That is the issue before the new Supreme Court.and the ruling will have profound implications for both MI5, SIS, GCHQ and other branches of Whitehall.
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