The Judgment in the MPs’ challenge

Caroline Lucas MP, Baroness Jones of Moulsecoomb AM, Geoge Galloway vs. the Security Service, SIS, GCHQ, [2015] UKIPTrib 14_79-CH

On October 14, 2015, the Investigatory Powers Tribunal (“IPT”) rejected Caroline Lucas MP and Baroness Jones’ and former MP George Galloway’s complaints that as a result of the Tempora program, their communications had most likely been and were being illegally intercepted in violation of the Wilson Doctrine. The Judgment addressed the following issues.

THE MEANING OF THE WILSON DOCTRINE

In 1966, Prime Minister Harold Wilson stated that “there was to be no tapping of the telephones of Members of Parliament, ….[barring] any development of a kind which required a change in the general policy.” Although Prime Minister Tony Blair extended the Wilson Doctrine to electronic surveillance in 1997, the parties in Lucas disagreed about how to interpret the Doctrine in light of mass surveillance and the enactment of RIPA subsequent to the Doctrine’s promulgation. In accord with Home Secretary Theresa May’s statement in the House of Commons in July 2014, the IPT looked to the Official Guidances (the “Guidances”) of MI5, MI6 and GCHQ and the draft Interception of Communications Code of Practice (the “Draft Code”) for the proper interpretation of the Wilson Doctrine. Although operative since 2015, the Draft Code had yet to be put before or approved by Parliament. The Guidances were disclosed for the first time during the Lucas proceedings.

Contrary to the Complainants’ contention that the interception of their communications under Tempora violated the Wilson Doctrine, the IPT held that warrants for untargeted surveillance under s. 8(4) of RIPA were outside the scope of the Wilson Doctrine. The Doctrine “was not intended to extend, and could not in practice extend, to prohibit the interception, as part of a very large quantity of communications, of communications by parliamentarians which were not targeted by the warrant applied for. Unless such were the case it would in fact render impossible the very procedure, namely, the grant of s. 8(4) warrants, which Parliament, those very parliamentarians, itself approved.” Para. 16. By contrast, the Wilson Doctrine was held to apply to decisions, under s. 16(3) of RIPA, to target parliamentarians’ communications for examination after collection under s. 8(4) warrants. The Doctrine’s coverage was also held to extend to targeted warrants under s. 8(1) of RIPA that name parliamentarians or have the sole or primary purpose of acquiring intelligence about them, but not to intelligence about parliamentarians incidentally acquired under s. 8(1) warrants.

The IPT also adopted the Intelligence and Security Services’ position that the Wilson Doctrine protects members of the Westminster Parliament and House of Lords, but not members of the European Parliament or the devolved Parliaments of Scotland, Northern Ireland or Wales. These restrictions and the limitation of the Wilson Doctrine to targeted interception and examination under s. 8(1) or s.16(3) were grounded in the view that the Doctrine was intended only to benefit MPs and “had nothing whatever to do with [protecting] confidential communications with constituents or whistle blowers.” Para. 22(iii). If, however, the Doctrine is viewed as safeguarding the untrammeled communication between constituents and representatives that is crucial for democracy, the IPT’s limitations on its scope seem questionable. See, e.g., “Ruling on tapping of MPs’ phones ‘body blow for democracy,” Belfast Telegraph, Oct. 14, 2015 (quoting Baroness Jones’ statement that, “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 absolutely no excuse for people who contact parliamentarians to be subject to blanket surveillance by the security services.”).

Even where it applies, the IPT held that the Wilson Doctrine does not absolutely bar interception or examination of communications. Targeting of parliamentarians’ communications for interception under s. 8(1) or examination under s. 16(3) is permissible under exceptional circumstances, so long as the special procedures in the Guidances and Draft Code are followed.

THE WILSON DOCTRINE IS NOT LEGALLY BINDING

The IPT went on to hold that neither the Claimants nor other MPs or peers could enforce the Wilson Doctrine at law. Against the Claimants’ contention that the Doctrine was legally enforceable on the basis of legitimate expectation, the IPT invoked then-Prime Minister Wilson’s statement that “if there was any development of a kind which required a change in the general policy [of not tapping MPs’ phones], I would at that moment as seemed compatible with the security of the country, on my own initiative make a statement in the House about it.” Para. 5. On this basis, the IPT held that no “expectation (legitimate or otherwise)” could arise in regard to the Wilson Doctrine because “it could be abrogated (or changed) at any time, and without any publication at any time in the foreseeable future.” Para. 22(ii).

By contrast, the IPT held that the Claimants would be entitled to relief if their communications had been intercepted in violation of the Intelligence and Security Agencies’ Guidances, and that it would go on to consider whether such violations had occurred. The IPT’s denial of the legal enforceability of the Wilson Doctrine implies, however, that the Agencies are obligated to comply with their own regulations only so long as they do not change them.

THE WILSON DOCTRINE CONFORMS TO THE ECHR

Relying on the European Court of Human Rights’ Judgment in Kennedy, [2011] 52 EHRR 4 and its own Judgment of December 5, 2014 in the Liberty et al challenge, the IPT held that the s. 8(1) and 8(4) regimes were “in generic terms compliant with the requirements of Articles 8 and 10” of the European Convention on Human Rights (“ECHR”) for the protection of privacy and freedom of expression. Para. 27. The Tribunal recognized, however, that in order to decide whether the Wilson Doctrine complied with the ECHR, it was necessary to consider whether the ECHR imposed “further and specific” requirements “to deal with interception of communications by parliamentarians.” Id. Although it was not cited in the Lucas Judgment, the IPT’s Judgment of February 6, 2015 in Liberty, et al. posed a major barrier to finding that the Wilson Doctrine complied with the ECHR. There, the IPT ruled that until GCHQ’s arrangements for obtaining, disclosing, and safeguarding data obtained from the United States and other foreign governments were disclosed and published in its Judgments of December 5, 2014 and February 6, 2015, the sharing of information obtained through the NSA’s Prism and Upstream programs had violated the ECHR’s requirement that interferences with privacy be in “accordance with the law.” By analogy, since the IPT saw the Guidances for MI5, MI6 and GCHQ as constitutive of the Wilson Doctrine, the ECHR’s “accordance with the law” requirement would appear to have been violated until the Guidances were disclosed during the Lucas proceedings and published in the Judgment.

Contrary to the analogy, the IPT held that “[u]nlike journalists’ and lawyers’ communications, there is no ECHR authority for enhanced protection for parliamentarians.” Para. 32. Accordingly, the ECHR does not require the enhanced protection for the privacy of parliamentarians’ communications that the Wilson Doctrine, as interpreted in the Draft Code and the Guidances, provides. Since the protections the Guidances afford are not required by the ECHR, the failure to disclose the Guidances cannot violate the ECHR. “[U]nless these rules are required by the provisions of Articles 8 and 10, the ECHR requirements of foreseeability or accessibility do not prevent reliance upon or reference to such Guidance, prior to the publication of it in these proceedings.” Para. 27.

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