The Wilson Doctrine

Plans to dispense with the ‘Wilson Doctrine’, a convention which bans the tapping of MPs phones (and presumably extends to e-mail and other communications) has lead to a predictable furore in both the dead tree press and the blogosphere – posts from Bloggerheads, Blairwatch and Longrider capture the flavour of the blogosphere’s reaction.

The easy option here, for me, would be to throw another ‘me too’ post into the pot; as regular readers know well I’m no slouch in the hammering Blair’s authoritarian tendancies department, but on this occasion I want to try to tease out a more considered response, not to support or justify the government’s plans but more to point out that there are some rather more important and universal principles at stake here than merely the right of MPs to go about their business without wondering quite who might be watching.

Let’s get the primary issue of principles out of the way first: should MPs be absolutely exempt from telephone tapping or other forms of communications surveillance?

No.

As a matter of principle, there is no reason I can see that MPs should not be subject to the same rules as everyone else when it comes to surveillance. I fully accept the point, that has been made in several places, that citizens have a right to expect that communications with their elected representatives should be confidential and subject to privilege; yet it must be noted that those same expectations of privilege arise with the doctor-patient relationship and that between legal counsel and their client(s); neither of which are afforded a blanket exemption from such monitoring where matters of national security, or the prevention and detection of serious crime arise.

The fundamental problem with this idea is not a matter of principle but of practice and the principles on which that practice is based. What is wrong here is not that MPs may have their phones tapped and their e-mail monitored for the first time in 40 years, but the whole basis on which surveillance is conducted and authorised as its affects us all.

The relevant Act of Parliament here is, of course, the Regulation of Investigatory Powers Act; as thoroughly miserable and Manichean a piece of legislation as any that has been passed in the last eight years.

This Act defines the circumstances in which a warrant to intercept communications may be issued as being:

(a) in the interests of national security;

(b) for the purpose of preventing or detecting serious crime;

(c) for the purpose of safeguarding the economic well-being of the United Kingdom; or

(d) for the purpose, in circumstances appearing to the Secretary of State to be equivalent to those in which he would issue a warrant by virtue of paragraph (b), of giving effect to the provisions of any international mutual assistance agreement.

RIPA 2000 S.5(3)

In all, these are not unreasonable circumstances in which to issue such warrants although given this government’s track record of grovelling subservience to the US in regards to extradition, (d) creates some cause for concern.

Where real concerns emerge regarding this Act is in section 7(1) & (2) , which deals with the matter of how such warrants are issued:

Issue of warrants.

7. – (1) An interception warrant shall not be issued except-

(a) under the hand of the Secretary of State; or

(b) in a case falling within subsection (2), under the hand of a senior official.

(2) Those cases are-

(a) an urgent case in which the Secretary of State has himself expressly authorised the issue of the warrant in that case; and

(b) a case in which the warrant is for the purposes of a request for assistance made under an international mutual assistance agreement by the competent authorities of a country or territory outside the United Kingdom and either-

(i) it appears that the interception subject is outside the United Kingdom; or

(ii) the interception to which the warrant relates is to take place in relation only to premises outside the United Kingdom.

Yes, we’re back to the same old problem that regularly crops up and bites the British government in the arse when they end up in the European Court of Human Rights, that of a politician – the Home Secretary – exercising what amount to judicial powers, in this case authorising interception warrants.

RIPA is the very model of offical obfuscation.

Warrants are issued on the executive authority of the Home Secretary acting in a judicial capacity without independent oversight.

What oversight there is in the system is provided by the Investigatory Powers Tribunal, headed up by the Interception of Communications Commissioner, the Rt Hon. Sir Swinton Thomas, to which one can complain if you beleive that you have been subjected to unlawful surveillance – assuming that you ever become aware that you have been subjected to such monitoring in the first place.

Even if you do find out that your phone has been tapped, or your mail or e-mail has been intercepted, and you do complain, you come up against things like this (taken from the IPT’s own FAQ)

Will I receive information about the progress of my complaint/claim?
The Tribunal is restricted in what it can disclose during the investigation of a complaint or claim. The Tribunal Rules state that no information or documents provided to the Tribunal, nor the fact that any have been provided, can be disclosed. The Tribunal can therefore only assure you that an investigation is still ongoing.

It’s also worth noting that the Tribunal functions, in law, along the lines of a judical review, the upshot of which being that there is no right of appeal against its rulings short of challenging its decisions under Human Rights Law – in the European Court in Strasbourg. For the purposes of the UK’s Human Rights Act, section 65 of RIPA indentifies the Tribunal as the sole competent court of jurisdiction in the UK, which appears to rule out even an appeal to the House of Lords, as indicated in the IPT website’s section on appeals:

There is currently no avenue to appeal the decision of the Investigatory Powers Tribunal in the UK

If a complainant would like to take his Human Rights claim further, he can contact the European Court of Human Rights in Strasburg. He will need to prove that he had taken up all the legal avenues open to him within the United Kingdom before they will consider their case.

Unsurprisingly, each of Thomas’s three reports to Parliament to date – covering 2001 to 2003 – include the same statement in relation to the work of the IPT:

On no occasion has the Tribunal concluded that there has been a contravention of RIPA or the Human Rights Act 1998.

And even if anyone were to mount a successful complaint, they would still come up against this:

If the Tribunal finds in a complainant’s favour, they will provide a summary of their determination together with any findings of fact that have arisen from their investigation.

In such a case, the Tribunal has the power to make any award of compensation, or other order, as they feel appropriate. This can include:

* an order quashing or cancelling any warrant or authorisation
* an order requiring the destruction of records obtained as the result of any warrant or authorisation
* an order requiring the destruction of any other information held by an organisation about a person

However, before providing a complainant with any information, the Tribunal must first allow the originator or holder of that information to make represenations to the Tribunal.

In other words, even if the Tribunal found in a complainant’s favour, the government, police, security services etc. would still be permitted representations to the tribunal to try to justify the retention of information held on the complainant, even if that information had been obtained unlawfully and of course, even if such records and other information are destroyed as a consequence of a tribunal order, the one thing the tribunal cannot do is erase any knowledge of the nature or content of that information as may exist in the minds of those who had access to it before it was destroyed.

When it comes to interceptions, there is no independent oversight at the single most important point in the process, the point at which the interception warrant is issued – we are simply expected to trust that the Home Secretary will act at all times as an independent and disinterested party and weigh applications purely on merit, irrespective of any personal or political interest which may arise out of a particular application.

In respect of applications which relate to Member of Parliament, or indeed any citizen who is involved in any activity in which they express or advocate opposition to goverment policy it is quite simply impossible for a politician and a senior member of the executive – i.e. a home secretary – to claim to be acting as a disinterested party and to free from conflicts of interest – this is a fundamental and structural flaw in the legislation as enacted; one that MPs, now facing the prospect of the lifting of the Wilson Doctrine, should be seeking to address as a matter of absolute urgency by insisting that the power to issue interception warrants should be vested now where it should have been vested in the first place – under the independent jurisdiction and scrutiny of the High Court.

In one respect I’m pleased that the question of the Wilson Doctrine has been raised as the ammner in which MPs respond to this issue will provde the clearest possible sign as to where this country in heading.

Should they meekly accept the demise of the Wilson Doctrine or fight only to preserve their own privileged status under it then, frankly, it will demonstrate that we have a political class which, across the board, is complicit in the descent of the country into a proto-fascist police state.

If, on the other hand, their challenge to the proposed demise of the Wilson doctrine is founded on a challenge to the fundamental legitimacy of the basis under which interception warrants are issued and its violation of the rightful separation of the powers of the Executive and the Judiciary then there remains some small hope for us yet.

There is, indeed, an important principle at stake here, but the principle is much more than the preservation of a privilege accorded to MPs forty years ago, it is one which strikes the very heart of the social contract, Britian’s largely unwritten constitution and the separation of powers under that constitution such that any MP who fails to challenge not only the withdrawal of the Wilson Doctrine but the very basis upon which interception warrants are authorised is failing in his or her duty to the British people.

  • Sir Swinton Thomas does not sit on the Investigatory powers Tribunal:

    Lord Justice Mummery (President)
    Mr Justice Burton (Vice President)
    Mr William Carmichael
    Sir Richard Gaskell
    Sheriff Principal John McInnes QC
    Sir John Pringle QC
    Mr Peter Scott QC
    Mr Robert Seabrook QC

    Any of the individual RIPA Commissioners: the Interception of Communications Commissioner, the Chief Surveillance Commissioner and his Deputies, the the Intelligence Services Commissioner, and the mysterious
    Investigatory Powers Commissioner for Northern Ireland (is this post suspended along with the Northern Ireland Assembly ?), may themselves have to give evidence before the Tribunal.

    This is not a properly transparent and public friendly system of checks and balances.

    Does the “Wilson Doctrine” also apply to Members of the Scottish Parliament, Members of the Welsh Assembly, Members of the Northern Ireland Assembly, Members of the European Parliament or Members of the House of Lords, such as Senior Judges themselves ? Hhat about the Royal Family ?

    The same need to prevent the Executive branch of Government and the intelligence agencies repeating a Francois Mitterand type bugging of political allies and rivals scandal, or the current Porthuguese bugging scandal, where the communications traffic data of several senior politicians seems to have been gathered without a warrant during the investigation of a large child abuse case surely applies to more than just Members of the House of Commons ?

    Does the “Wilson Doctrine” apply only to phone intercepts ? What about all the other aspects of RIPA e.g. Communications Traffic Data, Poastal Interceptions, the as yet unimplemented RIPA Part III powers regarding encryption keys , the use of Confidential Human Informants, directed and intrusive surveillance ?

  • Unity

    That, in essence, is my case.

    Not only is the regulatory system of the IPT and its Commissioner (who can be called upon for advice/opinion by the IPT) wholly lacking in transparency and accountability but it comes into effect only after the fact of an interception.

    Where independent oversight is necessary is at the stage where interception warrants are issued, where such applications should be brought before a High Court judge at which time the applicant should demonstrate ‘probable cause’ sufficient to justify such a warrant.

    Given such a process at the outset there should then be no impediment to the introduction of intercept evidence in court in the course of any subsequent prosecutions – a defence attorney may wish to challenge the legality of the original warrant in order to render intercept evidence inadmissible but any such challenge could be dealt with in chambers without compromising the evidence itself.