CHAPTER 2: PRIVACY
and in which libertarianism remains an insignificant political force. People are
concerned or outraged by isolated uses of surveillance powers, especially by police
or local authorities;34 yet on a broader scale, there was a relatively muted reaction to
the publication in 2013-14 of secret documents purporting to reveal the aspirations
and inner workings of GCHQ and its partners.
2.20.
But attitudes vary widely, both between individuals and over time. An alternative
strand of strong British opposition to state surveillance over private life may be
illustrated by examples from each of the past four centuries:
(a)
Viscount Falkland, appointed Secretary of State in 1643, at the height of the
English Civil War, could never bring himself to exercise “the liberty of opening
letters upon a suspicion that they might contain matter of dangerous
consequence”, finding it (according to one of his close associates) “such a
violation of the law of nature that no qualification by office could justify a single
person in the trespass”.35
(b)
The 18th century jurist William Blackstone characterised eavesdropping as an
offence “against the public health of the nation; a concern of the highest
importance”.36 Celebrated cases of the period declared that there was no
power to issue a general warrant for the search of properties, for “if there was,
it would destroy all the comforts of society; for papers are often the dearest
property a man can have”.37
(c)
In the wake of an 1844 parliamentary enquiry into the interception of letters
addressed to the Italian patriot Giuseppe Mazzini, the “secret branch” of the
Post Office (which dealt with foreign letters) and the deciphering office were
closed down, with the result that, according to one historian of the period, “[t]o
most intents and purposes, domestic political espionage in Britain stopped
shortly after 1848 ... until the story picks up again in the early 1880s”.38 Patriotic
pride in this state of affairs was expressed by Sir Thomas Erskine May, when
he wrote in 1863:
“Men may be without restraints upon their liberty: they may pass to and
fro at pleasure but if their steps are tracked by spies and informers, their
words noted down for crimination, their associates watched as
conspirators – who shall say that they are free? Nothing is more
34
35
36
37
38
GCHQ, in cracking the Enigma codes and so, very probably, shortening the war: C. Andrew The Defence
of the Realm: The Authorized History of MI5, 2010; and R.J. Aldrich, GCHQ: the Uncensored Story of
Britain’s Most Secret Intelligence Agency, 2010.
E.g. the revelation that Bob Lambert, an undercover police officer, tasked to infiltrate an environmental
protest group, fathered a child by one of the protesters, leading to a settlement of £425,000 from the
Metropolitan Police in 2014; see D. Casciani, “The undercover cop, his lover, and their son”, BBC
website, 24 October 2014.
E. Hyde, Earl of Clarendon, The History of the Rebellion, written in 1668-70: Oxford World’s Classics
edn., 2009, pp. 186-187. Falkland was equally resistant to “the employing of spies, or giving any
countenance or entertainment to them”. But the opening of letters continued: “convinced by the
necessity and iniquity of the time that those advantages of information were not to be declined, and
were necessary to be practised”, Falkland “found means to shift it from himself”: ibid.
Blackstone’s Commentaries, Book 4, Chapter XIII, p. 128.
Entick v Carrington 2 WILS KB 274, 807, pp. 817-818: see further at 5.4-5.8 below.
B. Porter, Plots and paranoia: a history of political espionage in Britain 1790-1988, 1989, pp. 77-81.
30