A recent decision of the Investigatory Powers Tribunal (the Tribunal) has determined the status, meaning and effect of the Wilson Doctrine - a promise initially made back in 1966 by the then Prime Minister Harold Wilson that there would be no tapping of phone communications of Members of Parliament by the security services.
In considering certain preliminary issues in Caroline Lucas MP and others v Security Service and others, the Tribunal ruled that the Wilson Doctrine is a mere 'political statement' that has no effect in law.
Special rights for parliamentarians
It is widely known that, under UK constitutional law, certain protections (privileges) are afforded to members of the Houses of Parliament (parliamentarians). These protections include for example legal immunity in respect of certain civil actions for things done or statements made during proceedings in Parliament.
The concept of parliamentary privilege was, however, taken a step further in November 1966 when the then Prime Minister Harold Wilson confirmed, in a statement given in Parliament, that there was to be no tapping of the telephones of Members of Parliament by the security services.
He went on to say that if there was any development leading to a change in this general policy he would make a statement in the House about it. This became known as the 'Wilson Doctrine'. A few days later, it was extended to members of the House of Lords by a formal statement made by the Lord Privy Seal.
Since it was first formulated the Wilson Doctrine has, despite some criticisms, been reaffirmed and/or extended - including by the extension of its scope such that it no longer had effect only with regard to phone tapping but to all forms of electronic communications - on several occasions, including by Prime Ministers Thatcher, Blair, and Brown. It has not, however, been extended so as to apply to any legislature other than the Westminster Parliament.
In July 2014, during a debate on the Data Retention and Investigatory Powers Bill and in response to a question about the doctrine and its application to parliamentarians, Theresa May (the Home Secretary) confirmed that the Wilson Doctrine continued to apply to parliamentarians. However, she also qualified her confirmation, and in effect modified the current understanding of the doctrine, by stating that "it does not absolutely exclude the use of [interception] powers against parliamentarians but it sets certain requirements for those powers to be used in relation to a parliamentarian".
And in July 2015, speaking in the House of Lords Baroness Chisholm of Owlpen (on a debate on the Wilson Doctrine) responded to a question by stating that "...it is not the case the parliamentarians are excluded [from interception of their communications] but certain rules and protocols have to be met if there is a requirement to use any of these powers against parliamentarians".
What does the Wilson Doctrine mean?
While each of the most recent statements in Parliament suggest that the Wilson Doctrine has been diluted since its original conception, they raised as many questions as they answered.
However, the meaning, scope and status of the Wilson Doctrine has been determined (in a hearing before a five member Tribunal) as a preliminary issue in claims brought by Caroline Lucas MP, Baroness Jones of Moulsecoomb AM, and George Galloway (who was still an MP at the time of the issue of the proceedings).
The claims are against the UK's three intelligence and security agencies (the Security Service, the Secret Intelligence Service and Government Communications Headquarters - each of whom make applications for warrants under the Regulatory Investigatory Powers Act 2000 (RIPA)) and the Secretaries of State for the Home Department and for Foreign and Commonwealth Affairs (who are responsible for the agencies and for the grant of warrants under the relevant sections of RIPA).
The argument adopted by two of the three Claimants was that, by virtue of the Wilson Doctrine, they had absolute protection in respect of all their communications and therefore interception of such communications could not take place (whether through targeting or otherwise) under the system of warrants provided for in RIPA. The third claimant adopted a slightly different argument which was that although the Wilson Doctrine may not be absolute, any change to it, whether in respect of any individual parliamentarian or generally, must be made by the Prime Minister and therefore any grant of a warrant under RIPA required the consent or acquiescence of the Prime Minister.
The Tribunal was asked to determine:
- the meaning and scope of the Wilson Doctrine,
- whether it operated so as to create a substantive legitimate expectation and/or to operate to prevent the interception of Parliamentarians' communications, and
- whether the system relating to interception of parliamentary communications complies with Articles 8 and 10 of the European Convention on Human Rights (ECHR).
Tribunal's decision
In its ruling on the preliminary issues the Tribunal determined that the Wilson Doctrine -
- Is not (and was never) absolute and accordingly did not apply to the system of application for the grant of warrants under RIPA, such that no warrant could be granted, whether at all or without the Prime Minister's consent, where there might be an interception of a parliamentarian's communications as a result of that warrant.
- Was not intended to extend, and could not in practice extend, to prohibit the interception of communications of parliamentarians which were not targeted by the warrant applied for.
- Cannot in any event prevent submissions being made by the agencies for the issue of a warrant under RIPA in relation to a parliamentarian. If the doctrine is to bite it would be at the stage of the Secretary of State's consideration whether to grant the warrant and not at the application stage.
- Does not constitute a ruling or statement that is clear, unambiguous and devoid of relevant qualification and accordingly is not enforceable in English law by any parliamentarian on the basis of legitimate expectation.
The Tribunal also ruled that the regime for interception of parliamentarians' communications is, by reference to section 5(3) of RIPA, (a) in accordance with the law under Article 8(2), and (b) prescribed by law under Article 10(2), of the ECHR.
Commentary
The limits of legitimate expectation
The Tribunal's decision in respect of the legitimate expectation argument put forward by the claimants confirms some general principles which can be applied more widely.
While the Tribunal considered that the statement did not pass the first hurdle for any legitimate expectation of being clear, unambiguous and devoid of relevant qualification - and so could not have provided the basis of a right enforceable in public law - the Tribunal's reasoning suggests that even if the statement had met this first test the legitimate expectation argument would have failed.
The point was made that the doctrine is a 'political statement' made in a political context which was never intended to be the ground of legal rights and on which there can be no reliance. That is because it operates 'in the realm of politics and not of the courts'.
This places Lucas in a line of recent case law in which promises made by ministers have been treated by the courts as existing only in the political sphere and having no legal status, including -
The situation in all of these cases can be summarised as that each relevant promise operated: "in the realm of politics, not of the courts, and the question whether the government should be held to such a promise is a political rather than a legal matter" (see APVCO 19 at [58]).
Clearly, therefore, there is a difference in the status of different types of government statements, between those which are capable of grounding a legitimate expectation that can be relied on and those that are 'political' and cannot. The Wilson Doctrine in Lucas was held to fall on the 'political' side of this line. But are not all government promises political at some level? This inevitably begs the question, to which there is no compelling answer, how to identify whether any particular statement operates in or outside of the realms of politics for the purpose of ascertaining whether or not it is capable of giving rise to a legitimate expectation.
It was also very apparent in Lucas that fresh legislation (concerning interception of communications) had been passed (by way of RIPA) since Harold Wilson first made the statement (and indeed since some of other prime ministers had affirmed the doctrine). The Tribunal held that this overrode any legitimate expectation that could possibly have existed prior to the change.
This argument has particular force in circumstances where parliamentarians themselves had changed the legislation, and thereby effectively overrode their own legitimate expectation (had it existed). But it applies equally in other cases where legislation has overridden the original promise. In whatever way a legitimate expectation may restrain the conduct of government, it does not prevent Parliament from passing inconsistent legislation which effectively renders the original promise unenforceable.
The reason for this brings us back full circle to the issue of Parliamentary privilege. Whatever else the executive branch of State may do, it cannot limit the ability of Parliament to pass legislation without trespassing into forbidden territory in breach of the Bill of Rights (see Unison at [9]-[10]).
Future of the Wilson Doctrine
Although the Tribunal has declared that the Wilson Doctrine is not absolute, and does not have any legal effect, that does not necessarily mean that going forward parliamentarians have no protection at all against the interception of their communications.
When Theresa May referred to the Wilson Doctrine in her July 2014 response she referred to "certain rules and protocols that have to be met if there is a requirement to use any of these powers against a parliamentarian". These 'certain rules and protocols' are essentially found in the relevant Interception of Communication Codes of Practice and the Official Guidance issued to the security and intelligence agencies. Although the guidance given to each agency is not identical, there is reference in each (either explicit or implicit) to the Wilson Doctrine and to the need to follow certain procedures and obtain clearances in respect of any proposal to intercept communications of parliamentarians.
Among other things the rules and protocols require that:
- particular consideration is to be given to applications for warrants and authorisation of warrants relating to the interception of communications between a parliamentarian and another person on constituency business;
- applications for warrants (to grant such interception) shall contain information on whether the communications proposed to be intercepted include such communications; and
- in certain exceptional circumstances there will be a need for the Secretary of State to consult with the Prime Minister in determining whether to grant the warrant and thereby authorise the interception.
What this essentially means is that the Wilson Doctrine has no legal effect, except to the limited extent to which it has helped to shape and been embodied in the Code and official guidance with which the Agencies must comply.
Parliamentarians' communications with their constituents and others are therefore protected (like those of every other person) only by the statutory regime established under RIPA, including the oversight of interception which is provided for through the requirement for a Secretary of State warrant and the supervisory function of the Tribunal.
Postscript
Following the Tribunal's decision an emergency parliamentary debate was held on 19 October 2015 on the operation of the Wilson Doctrine, during which the Home Secretary said that the judgment of the Tribunal bears close reading.
Mrs May confirmed that the Government is considering the judgment carefully, is proposing to publish a draft Bill on investigatory powers very shortly and will be looking at further safeguards for parliamentarians in the Bill. Whether this means that the doctrine has any meaningful future life remains to be seen.