The contemporary security vetting landscape

ABSTRACT

Recent events have brought a renewed attention to the system of security vetting which exists in the United Kingdom. This paper outlines the operation of that system against the legal background, demonstrating some of the difficulties with the system as it now exists and which would need to be considered in the event that the system was reformed.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. Waugh, “Jeremy Corbyn’s Close Aide.”

2. Pickard, “Corbyn aides”; and Stewart, “Commons launches investigation.”

3. Murray, “Is the ‘deep state’ trying to undermine Corbyn?”

4. On security vetting, see Linn, Application Refused; and Leigh and Lustgarten, “Employment, Justice and Détente”. Hollingsworth and Norton-Taylor, Blacklist addresses the wider context of vetting, including accounts of – for example – vetting in the construction industry and car industry.

5. Townsend, “Home Office under fire”. King now uses the surname Kind instead. Here I use the name by which he was referred to in the relevant media reports.

6. Townsend, “Home Office under fire”. On IPCO, see Scott, “Hybrid institutions”.

7. See the accounts of the development of vetting in Andrew, Defence of the Realm; and Williams, Not in the Public Interest. See also Fredman and Morris, The State as Employer.

8. See the discussions in Andrew, Defence of the Realm; and Mahoney, “Civil Liberties.”

9. The unfairness of this procedure was seen as the key failing of the new vetting process: Mahoney, “Civil Liberties,” 87 notes that ‘[t]he primary objections to negative vetting, as it was called, both within and outside of Parliament, were due more to the perception of a lack of fairness in the procedure, than to the theoretical principle of barring certain people from secret work.’ Williams pointed out that a ‘remarkable feature’ of the procedure was that ‘in cases where the civil servant denied the allegations against him to the bitter end’ it involved ‘four separate occasions when the Minister had to make a binding ruling’ Williams, Not in the Public Interest, 174.

10. See Hennessy and Brownfeld, “Security Purge”, suggesting that the introduction of positive vetting was motivated in part by the hope that ‘it would induce the United States to be more co-operative in sharing atomic information’. The key figure here was Klaus Fuchs, a German refugee who had been granted British citizenship in 1942 and later worked on the Manhattan Project, but was revealed in 1950 to have been spying for Russia.

11. See Hennessy and Brownfeld, “Security Purge,” 968.

12. Conference on Privy Councillors, Statement. As this document explains, the Conference’s full report ‘includes a close examination of the security procedures in the public services, and it would not be in the public interest to publish the full text of the Report or to make known all its recommendations.’ See also Jackson, Individual Rights, 375 noting that the circumstances of Burgess and McLean ‘served to focus public attention on the importance of considering persons with character defects as potential security risks’. An inquiry into John Vassall – the Civil Servant who spied for Russia – noted that he had survived positive vetting unscathed, possibly as a result of certain errors of judgment made during it: Radcliffe, Vassall Case.

13. ‘‘[A] total which probably included resignations and transfers to other jobs’: Andrew, Defence of the Realm, 838.

14. Radcliffe, Public Service.

15. Including that it ‘would be reasonable to establish the right of any Department in respect of establishments or staff employed on secret work to deny access to or to refuse to negotiate (either by correspondence or face to face) with a named trade union official whom it had reason to believe to be a Communist under the definition used in the purge procedure’ ([37]).

16. Though a central element of the background to the report was the claim by journalist Chapman Pincher that Sir Roger Hollis, formerly Director-General of MI5, had been a Soviet spy.

17. HMG, Recommendations of the Security Commission.

18. Ibid., [5].

19. Ibid., [17].

20. Security Commission, May 1983.

21. HC Deb 3 April 1985, vol 76 col 617WA.

22. See the discussion in Leigh and Lustgarten, Employment, Justice and Détente, 615–8.

23. HC Deb 24 July 1990, vol 177 col 160WA.

24. As well as those discussed in the present work, see eg Security Commission, May 1985 and Security Commission, July 1995.

25. See Leigh and Lustgarten, Security Commission. When the Intelligence and Security Committee was being reformed, it was argued that the functions once exercised by the Commission should be handed over to it, so that ‘[f]uture historians would no longer have to worry about whatever happened to the Security Commission and we would have given that body what one might call a decent burial.’ HL Deb 9 July 2012, vol 738 col 1008 (Lord Lloyd of Berwick).

26. Security Commission, May 2004. The report was prompted by the employment as a footman at Buckingham Palace of a reporter for the Mirror newspaper. The reporter had undergone a counter-terrorism check.

27. Leigh and Lustgarten, “Employment, Justice and Détente,” 641.

28. Recent research has also demonstrated a racial dimension to vetting practices: Lomas, ‘Crocodiles in the Corridors’.

29. Lord Denning, Lord Denning’s Report, [230].

30. Norton-Taylor, In Defence of the Realm?, 36–7.

31. Security Service Act 1989, s 1(2).

32. An aspect which was present from the very beginning: see Andrew, Defence of the Realm, 383.

33. Hennessy and Brownfeld, “Security Purge,” 968.

34. Conference of Privy Councillors, Statement, [5].

35. HMG, Recommendations of the Security Commission, [4].

36. HMG Developed Vetting, Q 26.

37. Reynolds, “The vetting files”. One case related to the practice was brought before the European Court of Human Rights, which declared it inadmissible: Hilton v United Kingdom Application no 12015/86 (6 July 1988) (admissibility).

38. On the former point, see Andrew, Defence of the Realm, 751–2, noting that the decline of subversion had seen vetting practices, and MI5’s role in them, significantly reduced at the early 1980s. When the changes were put into place the number of checks in which MI5 was involved fell from 360,000 in 1990 to ‘about 250,000 in 1991ʹ.

39. Some of the litigation which prompted the creation of a statutory basis for MI5 was brought by two individuals who claimed that MI5 held files on them as a result of their work with the National Council of Civil Liberties (now better known as Liberty): Hewitt and Harman v United Kingdom [1989] ECHR 29. Both applicants went on to be Labour MPs.

40. Official Secrets Act 1989, s 1(1).

41. OSA 1989, s 1(6).

42. OSA 1989, s 1(7).

43. Meaning that ‘it causes damage to the work of, or of any part of, the security and intelligence services’ of ‘it is of information or a document or other article which is such that its unauthorised disclosure would be likely to cause such damage or which falls within a class or description of information, documents or articles the unauthorised disclosure of which would be likely to have that effect.’ OSA 1989, s 1(4).

44. OSA 1989, ss 2 and 3.

45. OSA 1989, s 12(1).

46. OSA 1989, s 12(1)(g), and see the Official Secrets Act 1989 (Prescription) Order 1990 (SI 1990/200).

47. OSA 1989, s 12(2).

48. National Audit Office, National Security Vetting, 4.

49. Though note that ‘[s]ome other organisations, such as police forces, conduct their own vetting’: NAO [1.1]fn.

50. See the overview in National Audit Office, National Security Vetting.

51. See note 48 above.

52. Cabinet Office, Personnel Security Controls.

53. There is reason to believe that not all vetting is (or, at least, was) equal. In its 2004–05 report, the Intelligence and Security Committee said that that ‘there are six organisations that carry out vetting investigations in the UK: the Security Service, the SIS, GCHQ, the Defence Vetting Agency, the FCO and the Office of Civil Nuclear Security. We had been told that the three intelligence and security Agencies conducted more thorough vetting of their staff and consequently would not accept the vetting clearance of the other organisations without making additional enquiries. We were therefore concerned that a two-tier developed vetting system was being created or effectively existed.’ Intelligence and Security Committee, Annual Report 2004–2005, [47].

54. Cabinet Office, Personnel Security Controls, 20–2.

55. Though see National Audit Office, National Security Vetting, 4 which refers to the ‘three most common categories of national security vetting’ implying others exist.

56. Cabinet Office, Personnel Security Controls, 20–1.

57. HMG, Security Check/Counter-Terrorist Check.

58. Cabinet Office, Personnel Security Controls, 21.

59. Ibid., 22.

60. Ibid.

61. Cabinet Office, Personnel Security Controls, 22. Given recent delays to the DV process, which is already much longer than the others, the National Audit Office noted that some departments had ‘started vetting individuals for DV roles at SC level first, so that the individual can work in a limited capacity consistent with their SC clearance, while their DV clearance is pending’: National Audit Office, National Security Vetting, 5.

62. See note 59 above.

63. Ibid.

64. National Audit Office, National Security Vetting, [3.16].

65. National Audit Office, National Security Vetting, [3.19] notes that a backlog in DV cases was addressed by postponing some DV renewals which would otherwise have been due and permitting interviews, normally undertaken in person, to be carried out over the phone instead. There is also the possibility of so-called ‘aftercare’ checks, which might be scheduled, ‘for example as a planned review of an individual’s circumstances’, or unscheduled, in response to ‘an unforeseen event or change in circumstances’: [3.22].

66. Brazier, “Qualifying as a Minister,” 139–40.

67. ‘As Members of Parliament, [its Members] are not subject to the security vetting procedures that officials undergo in order to have access to such material.’ Intelligence and Security Committee of Parliament, Frequently Asked Questions. A persistent myth is that all members of the ISC of must be Privy Counsellors. This is not in fact true: Bochel, Defty and Kirkpatrick, Watching the Watchers, 77–8.

68. See Andrew, Defence of the Realm, 394 noting that the question arose in respect to knowledge of ‘atomic secrets’ during the Churchill government of the early 1950s, and that Attlee had dealt with the issue by not sharing such secrets with the full cabinet but rather a special committee thereof.

69. HMG, Recommendations of the Security Commission, [22]. The report in question is Security Commission, July 1973, relating to the behaviour of Earl Jellicoe and Lord Lambton. In relation to the latter’s drug use, the Commission had said that ‘there would be a significant danger of his divulging, without any conscious intention of doing so, items of classified information which might be of value to a foreign intelligence service in piecing together from a number of different sources a complete picture from which conclusions dangerous to national security could be drawn’ ([33]).

70. Security Commission, July 1973, [31].

71. HMG, Recommendations of the Security Commission, [22]. It nevertheless reaffirmed an earlier recommendation that when Ministers are appointed to a department they should be ‘given specific instructions upon security problems and procedures.’

72. See also Security Commission, July 1973, [42]: ‘…the practical difficulties involved in trying to apply the [positive vetting] process to Ministers are insuperable’.

73. Brazier, “Qualifying as a Minister,” 137. See also Brazier, “It is a constitutional issue.”

74. Security Commission, July 1973, [42].

75. Brazier, “Qualifying as a Minister,” 139.

76. Security Commission, July 1973, [42]: ‘We have noted that it has never been thought appropriate to subject Ministers to the positive vetting process, which is applied to officials so that a positive judgment may be taken that they are suitable to be entrusted with exceptionally secret information.’

77. Brazier, “Qualifying as a Minister,” 137, 139.

78. HC Deb 28 July 1998, vol 317 col 182WA.

79. For a discussion of the distinction between these processes, see Tomkins, “Justice and Security.”

80. Eg under the law of investigatory powers, which distinguishes High Court, Crown Court and Circuit judges from others (including, by implication, Coroners). As a matter of policy, the state applies the same policy to security and intelligence material: ‘One justification is to avoid the position in which different approaches are applied depending on whether the material is sensitive as RIPA intercept material or whether it is sensitive for some other reason. It is said that the distinction may not be easy to draw in practice when the RIPA provisions apply to information which has intercept material as its source. Another justification for the policy is practical: at the High Court, for example, there are established mechanisms in place for the handling of this type of material such as secure storage, DV cleared administrative staff and secure courtrooms.’ Secretary of State for the Home Department v Her Majesty’s Chief Coroner for Surrey [2016] EWHC 3001 (Admin), [45].

81. [2016] EWHC 3001 (Admin), [77].

82. Lustgarten and Leigh, “Security Commission,” 220.

83. Scott, “Hybrid institutions.”

84. See the judgment of the Court of Human Rights in Tinnelly & Sons and McElduff v United Kingdom (1999) 27 EHRR 249: and White, “Security vetting”. ‘The panel will be available to all those, other than recruits, in the public and private sectors and in the Armed Forces who are subject to security vetting at these levels, have exhausted existing appeals mechanisms within their own organisations and remain dissatisfied with the result.’ HL Deb 19 June 1997, vol 580 col 123WA.

85. Alongside a number of lay members. In every appeal a panel of 3 – either the chair or a deputy chair and 2 lay members – is assembled.

86. Cabinet Office, Security Vetting Appeals Panel.

87. See the description of its procedure in Leigh and Lustgarten, Employment, Justice and Détente, 622–3.

88. Which is not insubstantial, and appears to be increasing over time: ‘SVAP has heard 82 cases between 1998 and 2012: 14 between 1998 and 2002; 19 between 2003 and 2007; and 49 between 2008 and 2012.’ Cabinet Office, Security Vetting Appeals Panel, [17]. ‘Of the appeals to the Panel over this period, the appeal was upheld in 22% of the cases and not upheld in 63% of the cases. In 15% of the cases, the organisation was advised to re-examine the case or to undertake the vetting process again, or decided to do so itself’ ([18]).

89. HC Deb 22 July 2004, vol 242 col 514W.

90. Cabinet Office, Security Vetting Appeals Panel, [4].

91. ‘The Security Vetting Appeals Panel is an independent avenue of appeal for Civil Service staff and contractors whose security clearance has been refused or withdrawn.’ Security Vetting Appeals Panel, About us.

92. Gulamhussein v United Kingdom 46538/11 (26 April 2018) (admissibility), [5].

93. Gulamhussein, [78].

94. Gulamhussein, [81]. (references omitted).

95. R v Director of Government Communications Headquarters ex parte Hodges [1988] Lexis Citation 2586.

96. Esbester v United Kingdom 18601/91 [1993] ECHR 64. See also G, H and I v United Kindgdom (1993) 15 EHRR CD41.

97. Big Brother Watch v United Kingdom [2018] ECHR 722.

98. Ibid., 722.

99. See also the Equality Act 2010, s 117.

100. Employment Tribunals Act 1996, s 10(5).

101. Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013/1237, reg 94 and Schedule 2.

102. ETA 1996, s 10(6).

103. Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28 .

104. [2009] UKHL 28, [59].

105. Tariq v United Kingdom 46538/11 (26 April 2018) (admissibility), [71].

106. 46538/11 (26 April 2018) (admissibility), [71].

107. 46538/11 (26 April 2018) (admissibility), [71]. See, in particular, Regner v Czech Republic 35289/11 (19 September 2017).

108. 46538/11 (26 April 2018) (admissibility), [88]–[98]. Such an approach is evident also in the equivalent jurisprudence under the European Union’s Charter of Fundamental Rights: see, on one hand, ZZ (France) v Secretary of State for the Home Department (C-300/11) EU:C:2013:363; [2013] QB 1136 and ZZ (France) v Secretary of State for the Home Department [2014] EWCA Civ 7 and, on the other, Kiani v Secretary of State for the Home Department [2015] EWCA Civ 776.

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Paul F. Scott

Paul F. Scott is a lecturer in the School of Law, University of Glasgow.