On 4 November 2015, the government published the Investigatory Powers Bill, containing new surveillance powers for police and security services in the UK. The draft Bill, which is expected to be introduced to Parliament in the New Year, contains a wide range of proposals, including a “double-lock” for interception warrants, so that, following Secretary of State authorisation, warrants cannot come into force without approval by a judge and the creation of a new Investigatory Powers Commissioner to oversee how powers available to security services are used.
One particularly interesting protection is that for communications between parliamentarians and their constituents, whose confidentiality was brought into question after a ruling by the Investigatory Powers Tribunal (the “IPT“) on the enforceability of the “Wilson Doctrine”.
The Wilson doctrine, which was widely considered to prevent the interception of MPs’ communications by the security services, was the result of a statement made by Harold Wilson. In 1966, Wilson, who was then Prime Minister, told the House of Commons that “there was to be no tapping of the telephones of Members of Parliament, […] but that if there was any development 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.” There have been since a number of references to or clarifications of the Wilson Doctrine subsequently including, most recently, by Theresa May, who noted that, “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.”
The case, Lucas v Security Service, arose after whistle-blower Edward Snowdon exposed the government’s secret Tempora programme. Two Green Party parliamentarians, Caroline Lucas MP and Baroness Jones of Moulsecoomb AM, along with former MP George Galloway, alleged that the blanket collection of data under the programme breached the Wilson Doctrine. The claimants argued that they had a legitimate expectation that the doctrine would be enforced and that, as a result, their communications would not be monitored. They suggested that the doctrine could only be abrogated by the Prime Minister, who should make a statement to Parliament to that effect.
The IPT dismissed these arguments, holding that the doctrine was not absolute. The IPT noted that there were a number of significant limitations to the doctrine’s scope.
• The doctrine could not apply to “untargeted” warrants under s8(4) of Regulation of Investigatory Powers Act 2000, under which a substantial number of communications are intercepted: blanket application of the doctrine would render this procedure, which Parliament has itself approved, impossible.
• Once the Regulation of Investigatory Powers Act 2000 (“RIPA“), requiring statutory justifications for both targeted and untargeted warrants, had been passed, it was unlikely that the Wilson Doctrine was intended to rule out surveillance or incidental interception of MPs’ communications.
• In any event, the Wilson Doctrine could not prevent security agencies from applying to the Secretary of State for a s8(1) or s8(4) warrant in relation to an MP, and this was the critical stage at which the doctrine would apply.
Agreeing with the defendant’s argument that the doctrine is merely “a political statement in a political context“, the IPT confirmed that the Wilson Doctrine is not enforceable by way of legitimate expectation for the following reasons.
• Under R v Inland Revenue Commissioners, ex p MFK Underwriting Agents Ltd, a legitimate expectation must be clear, unambiguous and devoid of relevant qualification. The statement by Mr Wilson was ambiguous and had relevant qualification, both as to the nature and the effect of the policy.
• Before there can be any expectation (legitimate or otherwise), such statement or policy must have continuing effect. It could not be expected that the Wilson Doctrine would remain: it could be abrogated or changed at any time. Harold Wilson’s promise to inform Parliament was an unenforceable obligation and, in any event, reporting to Parliament could happen at any time of the Prime Minister’s choosing. As such, it would be impossible to know whether there had been an abrogation or change.
The IPT also confirmed that the regime under RIPA complies with Articles 8 and 10 ECHR. There is no ECHR authority for enhanced protection for parliamentarians, and the IPT held that it was unnecessary for it to make new law on this.
Following the IPT’s decision, David Cameron confirmed that the Wilson Doctrine is not “an exemption from the legal regime governing interception.”
However, while the Wilson Doctrine may not protect parliamentarians’ confidential communications from interception, some protections have been built into the draft Bill. Under clauses 16 and 85 of the Bill, the Secretary of State will be required to consult the Prime Minister before issuing a targeted warrant in relation to the interception or examination of an MP’s communications. The Prime Minister must also be consulted prior to the selection for examination of a parliamentarian’s communications collected under an untargeted warrant.
Following the IPT’s decision in Lucas, the claimants had described the potential threat to the confidentiality of communications between MPs and their constituents as “a body blow for parliamentary democracy“. While the Bill confirms that MPs’ communications may be intercepted under a warrant, parliamentarians may welcome the additional protections that the Bill offers.