The Investigatory Powers Tribunal rules that the 'Wilson Doctrine' which has assured MPs they are not spied on, is not legally enforceable
The Investigatory Powers Tribunal (IPT) has today ruled that the promise, made by British Prime Ministers from Harold Wilson to David Cameron, that the communications of members of the Houses of Parliament would not be intercepted by the security services is not "legally enforceable".
Today’s judgment from the IPT, which examines complaints about surveillance by the country’s intelligence agencies and other public bodies, states that the ‘Wilson Doctrine’, which has given assurance to parliamentarians for nearly 50 years, “has no legal effect” and is merely “a political statement in a political context, encompassing the ambiguity that is sometimes to be found in political statements”.
According to lawyers this now means that there is no enforceable protection in law for constituents and whistleblowers who want to communicate confidentially with members of Parliament.
The judgment follows a legal complaint made by Caroline Lucas MP, the former leader of the Green Party, and Baroness Jones of Moulsecoomb, a member of the House of Lords, as a result of revelations by Edward Snowden about the Tempora programme, a means by which the security services monitor and collate, on a blanket basis, the full range of electronic communications data produced in, or transiting through, the United Kingdom.
The two Green parliamentarians were concerned that their communications had been and continued to be intercepted by the security services in breach of the Wilson Doctrine.
Their lawyers, Leigh Day, argued that the blanket surveillance of MP and Peers' communications was unlawful as it breached the Wilson Doctrine, an undertaking made by successive Prime Ministers to members of the Houses of Parliament.
The Wilson Doctrine was first implemented by the Labour Prime Minister, Harold Wilson, on 17th November 1966. In a statement to the House of Commons Mr Wilson said:
“…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.”
This promise has been repeated by subsequent Prime Ministers.
Tony Blair confirmed on 4th December 1997 that the doctrine “… applies in relation to telephone interception and to the use of electronic surveillance by any of the three Security and Intelligence Agencies”.
David Cameron confirmed that the Wilson Doctrine remains in force in answers given on 24th January 2011, 14th November 2011, and 20th December 2011.
Despite these statements to the House, the government argued before the IPT, that the Wilson Doctrine is not an enforceable promise.
In today’s judgment the IPT adopted the arguments of the government, and stated:
“We are satisfied that the Wilson Doctrine is not enforceable in English law by the Claimants or other MPs or peers by way of legitimate expectation.” [Para 23 – page 26] It is an “unenforceable promise” [para 25 – page 27] and it does not apply to a warrant by the security services known as a s.8(4) warrant described as an ‘untargeted’ or ‘strategic’ warrant under which large amounts of material can be intercepted.
Rosa Curling from Leigh Day said:
“Promises made by successive Prime Ministers about the Wilson Doctrine were not worth the paper they were written on. Members of the Houses of Parliament have, for the past half century, relied upon promises made by Prime Ministers that their communications would be properly protected. Today’s judgment shows that they were wrong to place any reliance on these assurances.
"The Wilson Doctrine was put in place to reassure members of the public that their correspondence with their political representatives would be protected. This protection was, and continues to be, required so the public feel able to raise complaints about government policies and to expose wrongdoings of the government, without the government or its agencies snooping on these communications.
“Urgent steps must now be taken to ensure the principles behind the Wilson Doctrine are incorporated into law. The communications of the Members of Parliament should only be intercepted if approved by a member of the judiciary in advance."
Caroline Lucas MP said:
“This judgment is a body blow for parliamentary democracy. My constituents have a right to know that their communications with me aren’t subject to blanket surveillance – yet this ruling suggests that they have no such protection.
“Parliamentarians must be a trusted source for whistle blowers and those wishing to challenge that actions of the Government. That’s why upcoming legislation on surveillance must include a provision to protect the communications of MPs, Peers, MSPs, AMs and MEPS from extra-judicial spying.”
Lucas also criticised the Prime Minister for being ‘deliberately ambiguous’ on the Wilson Doctrine – noting that his own Government ministers have stated as recently as earlier this week that protection from blanket surveillance does still apply to parliamentarians.
Lucas said: “The Prime Minister has been deliberately ambiguous on this issue – showing utter disregard for the privacy of those wanting to contact parliamentarians.”
Baroness Jones of Moulsecoomb said: “As parliamentarians who often speak to whistle-blowers – from campaigners whose groups have been infiltrated by the police to those exposing corruption in government departments – this judgement is deeply worrying.
“Our job is to hold the executive to account, and to do that effectively it’s crucial that people feel they can contact us without their communications being monitored. “In a democracy there is no excuse for people who contact parliamentarians to be subject to blanket surveillance by the security services.”