Whitehall Fights to Close Window on MI5 Files
by James Clark
Home Affairs Correspondent
The Sunday Times, July 2nd, 2000, page 7

GOVERNMENT officials are racing to close a loophole in the law that allows people to see files held on them by the Special Branch, MI5, MI6 and GCHQ.

Civil servants are trying to plug the gap before it becomes public knowledge, ahead of an inevitable flood of applications that would force the secret services to open their files.

Records held by the most secretive of Britain's security agencies have always been kept under lock and key because they are excluded from laws governing people's rights to see information held on them by the government. MI5, the domestic security agency, keeps 440,000 such files.

However two mistakes, one in the 1998 Data Protection Act (DPA) and another in the British version of the 1995 European Data Protection Directive (EDPD), have sent civil servants into a spin.

The errors arose from confusion over the rules that allow agencies to compile information on people. Three reasons are acceptable: a person must be deemed a threat to national security, involved in serious crime or thought to be a threat to the "economic wellbeing of the nation".

Exemptions banning public access to this information were supposed to be included in both the DPA and the EDPD — but in both pieces of legislation they were missed out for the third, economic category.

A report into privacy matters reveals: "Due to a major loophole in the 1998 act the security services are left wide open to a request by an individual to see their personal files and to possible compensation claims."

Another course of action is available via article 8 of the European Convention of Human Rights (ECHR), which comes into force in Britain on October 1.

Simon Paine, an expert on the law relating to privacy, said: "This is an enormous cock-up by somebody. It shows just how confused the Home Office has been over the DPA, the ECHR and the new laws on the interception of communications. They have failed to see the wood for the trees in their own legislation."

The Home Office said: "We do not comment on matters of national security, but we will be looking into this."

Simon Paine is the author of the book Endangered Spaces: Privacy, Law And The Home, which "brings together all the elements of the law relating a person's right to enjoy privacy in their home — from trespass to wiretapping, defending property against burglars to dealing with bailiffs."

Statement by the Rt. Hon. Jack Straw Concerning
Files on Individuals Held by the U.K. Security Service (MI5)
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