Human rights legislation does not enable intelligence personnel to "blow the whistle" and reveal state secrets, the High Court in London was told yesterday during a preliminary hearing in the case of a former MI5 officer, Mr David Shayler.
In legal argument that could have far reaching implications for the security services and intelligence officers, Mr Nigel Sweeney QC said the Official Secrets Act did not offer a public interest defence allowing security service employees to publicise wrongdoing or incompetence.
Eight months ago, Mr Shayler (35) returned to Britain from "political exile" in Paris and was arrested and charged with three offences under the Official Secrets Act relating to an article in the Mail on Sunday in 1997. In the article he alleged that during the 1970s the security services tapped the telephone of the former Northern Ireland Secretary, Mr Peter Mandelson, and drew up a political profile of the present Home Secretary, Mr Jack Straw.
Mr Shayler is relying on the Human Rights Act to argue that the disclosures were in the public interest because they exposed wrongdoing.
One of the crucial issues in the case, and the subject of legal argument in the court, is whether the Official Secrets Act is incompatible with the Human Rights Act, which was incorporated into British law last October. Mr Shayler's lawyers maintain that the OSA is in direct conflict with the Human Rights Act, which guarantees the freedom of speech, because the OSA reverses the burden of proof and does not provide for a public interest defence.
The argument is untested and if Mr Shayler loses at this stage in the proceedings he is likely to appeal the decision to the House of Lords which will delay the start of the full trial hearing until later this year, possibly next year. A similar delay can be expected if the prosecution loses its argument.
The presiding judge, Mr Justice Moses, lifted the ban on the reporting of legal argument in court and Mr Sweeney argued it was "preposterous" to believe that the effect of the Human Rights Act was to make a criminal trial "a voyage of discovery" into untested areas of the law. He said the Official Secrets Act made it clear that security service personnel concerned about internal practice could take their complaints to the police or a government minister before going to the media and a responsible person would voice concerns within the "ring of security".
Before the hearing, Mr Shayler told reporters: "We are going to put the British state on trial. I have got nothing to fear - but they have everything to fear." He said the decision to restrict charges against him to the Mail on Sunday allegations and not other claims, including a security service plot to murder the Libyan leader, Col Moammar Gadafy, and missed opportunities to break the IRA, was a "totally arbitrary rule of law".
The hearing continues today.