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Surveillance of MPs and the Wilson Doctrine: no inherent legal force but applies anyway

November 18, 2015

The case of Caroline Lucas and others v Security Service and others [2015] UKIPTrib 14_79-CH in the Investigatory Powers Tribunal considered as a preliminary issue the status, meaning and effect of what is known as the Wilson Doctrine. The Doctrine originates in the statement to the House of Commons on 17 November 1966 by the then Prime Minister Harold Wilson.

The Respondents were the three intelligence services and the Secretaries of State for the Home Department and for Foreign and Commonwealth Affairs, with responsibility for them and who are empowered to grant interception warrants under s.5 of the Regulation of Investigatory Powers Act 2000 (RIPA or the 2000 Act) in respect of what the IPT described as targeted and untargeted communications under s 8(1) and 8(4) of the 2000 Act.

The statement of Harold Wilson followed nearly a decade after the Birkett Report, (Cmd 283 October 1957), which was a comprehensive review into the issue of interception carried out by Privy Councilors (prompted in fact as a result of the use of intercept in disciplinary proceedings brought against a barrister). Birkett reported that the interception of communications had been recognised as a lawful power by a succession of statutes spanning two centuries, and that its use had been effective in detecting major criminals and preventing injury to national security. At paragraph 124 the report stated that, “[a] Member of Parliament is not to be distinguished from an ordinary member of the public, so far as the interception of communications is concerned, unless the communications were held to be in connection with a Parliamentary proceeding”.

This led eventually to a growing belief by a small number of politicians that MP’s telephones could have been intercepted. In response Mr Wilson made the following statement:

“The position regarding unauthorised tapping…is as follows: any tapping that, in accordance with the rules of the [Birkett] Report, becomes necessary by any Crown servant concerned with the things covered in that Report, can only be done with the individual authority of my right hon. Friend the Home Secretary under very strict conditions..I hold no responsibility for what was done in this matter before the present Government came to power but it is fair to point out that the [Birkett] Report itself said that Members of Parliament should not be treated differently from members of the public…I reviewed the practice when we came to office and decided on balance—and the arguments were very fine—that the balance should be tipped the other way and that I should give this instruction that there was to be no tapping of the telephones of Members of Parliament. That was our decision and that is our policy. But if there was any development of a kind which required a change in the general policy, I would, at such moment as seemed compatible with the security of the country, on my own initiative make a statement in the House about it. I am aware of all the considerations which I had to take into account and I felt that it was right to lay down the policy of no tapping of the telephones of Members of Parliament.

The Doctrine was extended to members of the House of Lords on 22 November 1966. In December 1997 Tony Blair re-stated the Doctrine’s reach and brought it up to date saying that it, “applies in relation to telephone interception and to the use of electronic surveillance by any of the three Security and Intelligence Agencies”. On 21 January 2002, he clarified that “the policy extends to all forms of warranted interception of communications”. In September 2007 Gordon Brown clarified the position further, saying, “the Wilson Doctrine applies to all forms of interception that are subject to authorisation by Secretary of State warrant”. More recently, the current Home Secretary has said, “obviously, the Wilson Doctrine applies to parliamentarians. It does not absolutely exclude the use of these powers against parliamentarians, but it sets certain requirements for those powers to be used in relation to a parliamentarian. It is not the case that parliamentarians are excluded and nobody else in the country is, but there is a certain set of rules and protocols that have to be met if there is a requirement to use any of these powers against a parliamentarian”.

The “rules and protocols” refer to the Interception of Communication Code of Practice, and the relevant guidance for the intelligence services.

In his 2005-2006 Report, the then Interception of Communications Commissioner Sir Swinton Thomas, was critical of the Doctrine, saying
that it “may have been defensible when it was first enunciated in 1966, when there was no legislation governing interception and there was no independent oversight. In 1966 there was no requirement for a warrant with all the safeguards that are attached to that operation now…in 2006, the interception of communications is the primary source of intelligence in relation to serious crime and terrorism and is strictly regulated. The Doctrine means that MPs and Peers can engage in serious crime or terrorism without running the risk of being investigated in the same way as any other member of the public…In my view the Doctrine flies in the face of our Constitution and is wrong. I do not think that it provides MPs with additional protection. I think in fact that it is damaging to them”. The views of the Commissioner were not however adopted by Mr Blair.

The new draft Code of Practice which the IPT described as the “de facto” Code includes at paragraph 3.1 a requirement that “consideration should be given to any infringement of the privacy of individuals who are not the subject of the intended interception, especially where communications relating to religious, medical, journalistic or legally privileged material may be involved”.

Paragraph 3.2, provides that “particular consideration should also be given in cases where the subject of the interception might reasonably assume a high degree of privacy, or where confidential information is involved. Confidential information consists of matters subject to legal privilege, confidential personal information or confidential journalistic material. For example, extra consideration should be given where interception might involve communications between a minister of religion and an individual relating to the latter’s spiritual welfare, or where matters of medical or journalistic confidentiality or legal privilege may be involved”. Similar caution is emphasised in relation to applications for warrants acquiring internal communications under s 8(1) although not s 8(4).

The “Official Guidance” to the three intelligence services was disclosed in gist form for the first time in this case. Each recognised the importance of the Doctrine, the Security Service guidance stating that the “Wilson Doctrine is important as it reflects the political sensitivity of the
interception of communications of Parliamentarians. Such targeting should be regarded as exceptional.

- The application of the Doctrine is limited to members of the Westminster Parliament only (MPs and Peers) and the deliberate targeting of their communications.
- It covers all forms of interception of communications and ‘electronic surveillance’ (including eavesdropping) that are subject to authorisation by a warrant signed by a Secretary of State”.
The Secret Intelligence Service and GCHQ guidance also recognised the exceptional nature of MP’s communications but noted that it did not extend to the acquisition of communications data.

The issues before the IPT were: (i) What does the Wilson Doctrine mean; (ii) What is its continuing effect in respect of parliamentary communications; (iii) What status does it (or its continuing effect) have in English law; (iv) Does the system relating to interception of parliamentary communications comply with Articles 8/10 of the ECHR?

The IPT held that the Wilson Doctrine did not operate such as to preclude an application where there might be interception of a parliamentarian’s communications as a result, being “entirely satisfied that the Wilson Doctrine, which commenced in respect of the tapping of telephones of MP’s telephones, was not intended to extend, and could not in practice extend, to prohibit the interception, as part of a very large quantity of communications, of communications by parliamentarians which were not targeted by the warrant applied for”.

It also held that that the Wilson Doctrine was never absolute, “[it] is difficult to see how there could be an absolute policy which would rule out interception of any communications with parliamentarians, as opposed to a policy relating to those involving confidential communications with constituents”.

The Doctrine could not in principle prohibit applications being made by the intelligence services to the relevant Secretary of State for the issue of a warrant under s 5 in relation to a parliamentarian. No lawful interception is possible without a Ministerial warrant and therefore, the critical stage at which the Wilson Doctrine would operate is at the point when the application is considered, not earlier. The concept of legitimate expectation did not come to the aid of the claimants as a result of the “studied ambiguity” relating to the Doctrine.

The fact that the Doctrine was legally unenforceable did not mean that MPs’ communications could be intercepted arbitrarily. Indeed the opposite was true. The Code of Practice made it clear there was a duty of candour (discussed here), authority would only be granted in exceptional circumstances and only after consultation with the Prime Minister. There was no risk of an MP’s name being added to a targeted warrant, since procedurally, it would still be subject to the same test. It had no application to an untargeted warrant.

In terms of compliance with the Human Rights Act, the IPT referred to the decisions in Kennedy [2011] 52 EHRR 4 and Liberty/Privacy International [2015] UKIPTrib 13_77-H_2 for support that the European Court of Human Rights was satisfied that the s. 8(1) and 8(4) regimes are in generic terms compliant with the requirements of Articles 8 and 10. There was no express authority that anything more was required. The question therefore arose as to whether the IPT could or should now establish such authority. One of the obvious difficulties in doing so was identifying where the additional protection was needed and for whom. For example, should such protection be limited to only elected officials and to what communications and what should the nature of the protection be? In the end, the IPT declined to do so, principally because of “the well-established proposition as to the reduced foreseeability required in the field of national security, a sufficient and adequate system for ECHR purposes, and one which does not require the Wilson Doctrine to underlie it”.

In terms of the questions raised on the complaint, the Tribunal held: (i) the Wilson Doctrine does not apply to untargeted warrants at the stage of issue; (ii) it applies to targeted, but not incidental, interception of parliamentarians’ communications, both in respect of s 8(1) at date of issue and in respect of s 8(4) at the date of accessing/selecting such communications (iii) the Wilson Doctrine does not operate so as to create a substantive legitimate expectation (iv) it has no legal effect, but in practice the intelligence services must comply with the Draft Code and with their own Guidance; (v) the regime for the interception of parliamentarians’ communications is in accordance with the law under Article 8(2) and prescribed by law under Article 10(2), in particular by reference to s.5(3) of RIPA.

The key practical points arising from the judgment are these:

– The Wilson Doctrine has no inherent legal force in English law

– However, it is applied voluntarily through the application of the Code of Practice and the Official Guidance applicable to the intelligence services

– It does not apply to untargeted interceptions at the time of issue (but does apply where these are accessed/selected at a later date) but does apply to targeted interceptions at the time of issue

– The current law is compatible with the European Convention on Human Rights

– In its original form, the Doctrine only applied to interception of communications but the effect of the Doctrine is recognised in the Code of Practice on Covert Surveillance (at paragraph 4.1) and the Code of Practice on the use and conduct of Covert Human Intelligence Sources (also at paragraph 4.1)

– It is essential officers seeking authorisation understand the exceptional circumstances that must exist before authorisation can be granted and adhere to the duty of candour: see Chatwani and others v National Crime Agency [2015] UKIPTrib 15_84_88-CH (see review of that case here)

© Simon McKay (2015). Please ask for my permission before using or copying the material contained on this blog. If you do attribute it to me with a link to the original content. This is opinion, not legal advice.

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