Emma-Louise Fenelon is a Pupil Barrister at 1 Crown Office Row
‘Eavesdropping, sir? I don’t follow you, begging your pardon. There ain’t no eaves at Bag End, and that’s a fact.’ (J.R.R Tolkein)
If parliamentarians are seen to be taking a more forensic interest in matters of surveillance in the coming weeks and months, the reason is unlikely to be purely down to the publication of the greatly anticipated surveillance legislation. Last week’s Investigatory Powers Tribunal judgment has sent ripples of discontent through both Houses of Parliament, evidenced in immediate calls for an emergency debate on the subject (scheduled to take place in the House of Commons later today).
The Tribunal surprised many – not least Members of Parliament – in holding that MPs’ communications with their constituents and others, are protected, like everyone else’s, by the statutory regime established by Part 1 of the Regulation of Investigatory Powers Act 2000 (RIPA) and not as was previously believed, by the ‘Wilson Doctrine’.
The doctrine originated in a statement made in November 1966 in the House of Commons by the then Prime Minister, Harold Wilson. In it he instructed,
“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.”
This statement markedly altered the status quo. Nine years previously a Committee of Privy Councillors had confirmed that the power to intercept communications had been recognized as lawful by a succession of statutes over the previous 200 years. A Member of Parliament was not to be distinguished from an ordinary member of the public unless the communications were held to be in connection with a Parliamentary proceeding.
The doctrine was formally extended to the House of Lords a week later and since then there have been a number of repetitions and clarifications in both Houses. Margaret Thatcher reaffirmed the doctrine in 1980. In 1997 Tony Blair stated the “policy…applies in relation to telephone interception and to the use of electronic surveillance by any of the three Security and Intelligence agencies”. He later said in 2002 that “the policy extends to all forms of warranted interception of communications.”
In July last year Home Secretary Theresa May stated:
“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.” (emphasis added)
The Claimants, Caroline Lucas MP, Baroness Jenny Jones and former MP George Galloway (who was still an MP when the proceedings began) sought clarification from the Tribunal about the status, meaning and effect of the Wilson Doctrine.
The issues to be resolved were:
- What does the Wilson Doctrine mean?;
- What is its continuing effect in respect of parliamentary communications?;
- What status does it (or its continuing effect) have in English law?; and
- Is the system relating to interception of parliamentary communications ECHR compliant?
In addressing these issues, the Tribunal was specifically concerned with two types of surveillance warrant available to the intelligence services under RIPA: first, a s.8(1) warrant, described as a ‘targeted warrant’ which addresses identified persons and/or organisations; and second, a s.8(4) warrant, directed at the communications or class of communication identified in the warrant, also known as an ‘untargeted’ warrant. The latter was described as permitting
“a substantial volume of communications to be intercepted, and then requires the application of a selection process to identify a smaller volume of intercepted material that can actually be examined by persons, with a prohibition on the remainder being so examined”.
Both types of warrants carried the risk of incidental surveillance.
The primary question was whether the Wilson Doctrine protected Members of Parliament from incidental surveillance. The answer? A resounding no.
(i) What does the Wilson Doctrine mean? And (ii) what is its continuing effect in respect of parliamentary communications?
The Tribunal was “wholly unpersuaded” by the argument that the Doctrine applies to every warrant, whether s.8(1) or s.8(4), and that no warrant can thus be granted where there might be incidental interception of a parliamentarian’s communications. The Doctrine was not, and never had been, absolute and the Tribunal was “entirely satisfied” that it was not intended to prohibit the interception of incidental communication, particularly once RIPA was passed by Parliament.
As stated by the Tribunal:
“It is clear to us that the Wilson Doctrine as now constituted is as explained by Mrs May in July 2014”.
Further the Tribunal found it plain that the “rules and protocols” limiting the surveillance of parliamentarians’ communications to which the Home Secretary referred are those found in the Interceptions of Communication Codes of Practice and the (previously unpublished) Official Guidance for the Security and Intelligence Agencies. The Guidance explicitly states that its application is limited to the deliberate surveillance targeting of MPs and Peers.
(iii) What status does it (or its continuing effect) have in English law?
The Claimants argued that the Doctrine was legally enforceable by way of legitimate expectation. The Tribunal disagreed, holding that the statement was not sufficiently “clear, unambiguous and devoid of relevant qualification”, nor would it have continuing effect, noting that it could be changed without publication at any time. Additionally, the Tribunal did not accept that the intention behind the doctrine was to oust legislation subsequently passed by Parliament, nor impose obligations with which it was impossible in practice to comply (e.g. the prior filtering of parliamentarians’ communications). According to the Tribunal, the statement as originally expounded was plainly meant for the benefit of MPs and had nothing whatsoever to do with confidential communications with constituents or whistle blowers. Its effect remained “in the realm of politics, not of the courts.”
(iv) Is the system relating to interception of parliamentary communications ECHR compliant?
On the question of whether the surveillance regime is compatible with Articles 8 and 10 of the ECHR, the Tribunal cited case law in which both s.8(1) and s.8(4) warrants had been upheld by the Strasbourg Court. The Claimants then asked whether anything further is required by the European Convention to deal specifically with the interception of communications by parliamentarians and if not whether the Tribunal could or should establish such authority. The Tribunal held that unlike journalists’ and lawyers’ communications, there is no ECHR authority for enhanced protection for parliamentarians. Moreover, there are very good reasons for parliamentarians not being treated differently from other citizens, while the s.5 RIPA criteria and approved interception regimes impose a high threshold for interception. It was not necessary, therefore, for the Tribunal to add to this by making new law.
The judgment drew attention to significant disclosures that litigation before the Investigatory Powers Tribunal had previously unearthed, citing the judgments in Liberty v GCHQ (No.1)  UKIPTrib 13_77-H and Belhadj  UKIPTrib 13_132-H. The present case was no different – the Official Guidance for the Security and Intelligence Agencies (part of the regime regulating the surveillance of MPs communications) had not been disclosed prior to these proceedings. The judgment cited this as “an important aspect of the advantages that can be gained by litigating in this Tribunal.” [para 24]
It is, perhaps, a curious observation in light of the fact that in December 2014, the Tribunal held that GCHQ had acted unlawfully in accessing millions of private communications. It was precisely because until then the rules governing the UK’s access to such communications were unpublished that GCHQ was found in breach of the law.
The Guidance makes for fascinating reading, and it is worth reading the judgment for this alone [para 11]. On its face it seems to provide a high threshold for interception. The more fundamental question remains, however: who should get to wield the power?