Proceeedings in the MPs’ challenge

On May 4, 2014, Green Party members Caroline Lucas MP and Baroness Jones of the House of Lords filed a complaint before the IPT alleging that that their communications very likely had been and were being intercepted as part of Tempora, and that the interception violated Parliamentary privilege and the Wilson doctrine. Announced by Prime Minister Harold Wilson in 1966, the Wilson Doctrine provides that absent a major national emergency, no Member of Parliament’s telephone shall be tapped,  and that any changes to this policy will be reported by the Prime Minister to Parliament. In 1997, Prime Minister Tony Blair extended the Wilson Doctrine to electronic surveillance, stating a few years later that the Doctrine “extends to all forms of warranted interception of communications.” In addition to alleging violations of Parliamentary privilege and the Wilson Doctrine, Ms. Lucas and Baroness Jones alleged that the interception of their communications under the Tempora program violated Articles 8 and 10 of the European Convention on Human Rights.

In its written submissions to the IPT, the government refused to either confirm or deny the existence of the Tempora program or any of the factual allegations in the complaint about the program. Nor did the government confirm or deny whether any of the complainants’ communications had been or were being intercepted. 

At the first procedural hearing on the case, held on July 1, 2014, the President of the IPT, Mr. Justice Burton, stated that “the only issue in this case which needs a hearing is . . . [the scope] of the Wilson doctrine.” Although counsel for GCHQ, MI5, and MI6 asked to reserve the right to make submissions in closed session about “past policy and procedures in relation to the Wilson doctrine,” Mr. Justice Burton said that the IPT was not “Kafkaesque,” and “[w]e have a good issue here we can decide in open.

On October 22, 2014, then-MP George Galloway of the Respect Party also filed a challenge before the IPT, arguing that the revelations about Tempora made it inconceivable that his communications were not being intercepted, and that the interception violated both the Wilson Doctrine and Articles 8 and 10 of the ECHR.

On July 23 and 24, 2015, the IPT conducted a public hearing on the Lucas and Jones and Galloway cases. James Eadie QC stated for the government that the Wilson Doctrine “simply cannot work sensibly” when bulk interception is taking place, and claimed that the Doctrine did not have the force of law and could not constrain the intelligence agencies’ operations. While conceding that the MPs’ communications might have been intercepted as part of the bulk interception authorized under the Regulation of Investigatory Powers Act (RIPA), Mr. Eadie stated that “there is so much data flowing along the pipe” that communications are not examined at the point of interception. “The interception at that stage isn’t in any event objectionable, if one stands back and takes a broad view of the Wilson doctrine: it isn’t intelligible at the point of interception.”

The government also told the IPT that MI5’s, MI6’s and GCHQ’s internal policies did not require them to inform the Prime Minister when parliamentarians’ communications were intercepted.

Additionally, hitherto secret documents revealed that after MPs Lucas and Jones’ challenge was filed, MI5, MI6 and GCHQ had revised their internal policies on surveillance of parliamentarians, changing them eight times in the 12 months before the hearing. In March 2015, GCHQ had changed its internal guidelines  so as to exempt members of the devolved parliaments of Scotland, Wales and Northern Ireland and the European Parliament from the Wilson Doctrine’s protections.

The hearing followed revelations in June 2015 that prison staff had recorded 3,150 prisoner calls to MPs and downloaded 280 for playback since 2006. Chief Inspector of Prisons Nick Hardwick said that most calls had been listened to “in error.”

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