Senior Labour MPs have warned the British government that it risks a repeat of the Spycatcher affair, which damaged the previous Conservative administration, if it pursues a prosecution against the former MI5 agent, Mr David Shayler, who is expected to return to Britain today to challenge the Official Secrets Act.
The Labour MP, Mr Andrew Mackinlay, who is challenging for the chairmanship of the Parliamentary Labour Party, said yesterday that ministers faced ridicule if Mr Shayler (34) was charged under the "flawed and archaic" Official Secrets Act. "It is now deemed by jurists to be contrary to the modern norms of justice and conflicts with the European Convention on Human Rights," Mr Mackinlay said.
The chairman of the Commons Home Affairs Committee, the Labour MP, Mr Robin Corbett, said it was time for ministers to accept a greater degree of parliamentary scrutiny of the intelligence services.
Mr Shayler will end three years of "political exile" in France when he and his girlfriend, Ms Annie Machon, his family and legal representatives, step off a P&O ferry at Dover today. He will be arrested immediately on his arrival and it is understood that he will be taken to Charing Cross police station in London for questioning by members of the Special Operations unit of the Metropolitan Police. In a deal that Mr Shayler says he has reached with the government, he will be released on bail later today.
The former MI5 agent fled to France in 1997 after he claimed that MI6 was behind a plot to assassinate the Libyan leader, Col Muammar Gadafy, during which several civilians were killed. He signed the Official Secrets Act on two occasions before leaving MI5 in 1996. But he went on to reveal that MI5 held files on several senior Labour MPs, including Mr Peter Mandelson, who is now Northern Ireland Secretary, and that the organisation was so bureaucratic it missed opportunities to prevent IRA bombings in London.
Mr Shayler would be the first person to be put on trial under the Official Secrets Act. It was introduced by the Conservatives in its current form in 1989, amid bitter criticism from the Labour Party, which was then in opposition. But the Thatcher administration was determined to act after it had failed to suppress the publication of the book Spycatcher, written by another former MI5 agent, Mr Peter Wright, in which he claimed the organisation had "bugged and burgled" its way across London.
Mr Shayler's lawyers will argue that the Official Secrets Act conflicts with the basic right to freedom of expression guaranteed under the European Convention on Human Rights, which is due to be incorporated into British law in October. The Act bans government officials and members of the armed forces from disclosing details of their work and it also prevents anyone charged under the legislation from claiming a public interest defence.
At a press conference in Calais yesterday, before his departure for Britain, Mr Shayler insisted he was not a "traitor" and that he was returning on his own terms. He claimed the Metropolitan Police was now investigating his claims about MI6.
"I am going back on my own terms and on a position of strength as well. The reason I see this as a victory is because the government will not fight people who stand up to it."