GCHQ can monitor MPs' communications, court rules

MPs’ and peers’ private communications are not protected from interception by the so-called Wilson doctrine that was widely thought to provide special privileges for parliamentarians, according to a court ruling.

A surprise decision by the investigatory powers tribunal (IPT) has found that guarantees – which even the home secretary, Theresa May, reasserted this week – do not apply.

The ruling prompted emergency questions in parliament and calls from MPs for statements by both the Commons Speaker, John Bercow, and the government.

The investigatory powers tribunal judgment is in response to a claim brought by two Green party parliamentarians: Caroline Lucas, MP for Brighton Pavilion, and Jenny Jones. They had complained that disclosures by the whistleblower Edward Snowden made it clear that GCHQ was capturing their communications, in breach of the so-called Wilson doctrine.

The convention is named after former prime minister Harold Wilson, who pledged in 1966 that MPs’ and peers’ phones would not be tapped. He told the Commons “that there was to be no tapping of the telephones of members of parliament ... [but] that, if there was any development which required a change in the general policy, [he] would at such moment as seemed compatible with the security of the country, on [his] own initiative, make a statement in the house about it”.

In December 1997, the then prime minister, Tony Blair, said the doctrine extended to electronic communication, including emails. As recently as Monday, May told MPs: “The Wilson doctrine applies, but of course it is subject to proceedings that are taking place at the moment.”

In its decision, however, the tribunal said it was “satisfied that the Wilson doctrine is not enforceable in English law”, and that it was merely “a political statement in a political context, encompassing the ambiguity that is sometimes to be found in political statements”.

The investigatory powers tribunal judgment said: “The Wilson doctrine does not operate so as to create a substantive legitimate expectation.

“The Wilson doctrine has no legal effect but in practice the [intelligence] agencies must comply with the draft code and with their own guidance. The regime for the interception of parliamentarians’ communications is in accordance with the law.

“MPs’ communications with their constituents and others are protected, like those of every other person, by the statutory regime established by part one of Ripa [Regulation of Investigatory Powers Act] 2000. Unlike journalists’ and lawyers’ communications, there is no [European court of human rights] authority for enhanced protection for parliamentarians.

“The Wilson doctrine, as now enunciated and put into effect, highlights a need for caution and circumspection in respect of parliamentarians’ communications. But such caution and circumspection will be called for in respect of many other types of confidential and sensitive private communications, which come to be considered under the interception regimes.”

The finding is also surprising in the way it brushes aside assumed parliamentary privileges. Had the European court of human rights reached such a conclusion, Conservative MPs would have lined up to denounce Strasbourg’s interference in domestic affairs.

The judgment did not deal with the issue of whether MPs’ or peers’ email or phones had actually been monitored but dealt solely with whether the Wilson doctrine granted them special immunity from surveillance.

The case was also brought by the former MP George Galloway.

The Labour MP Sadiq Khan, whose conversations with a prisoner in a jail were bugged in 2005, was deemed by the then surveillance commissioner not to have been protected by the Wilson doctrine.

Lucas said on Wednesday: “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 whistleblowers and those wishing to challenge the 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.”

Lady Jones said: “As parliamentarians who often speak to whistleblowers – from campaigners whose groups have been infiltrated by the police to those exposing corruption in government departments – this judgment 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 absolute no excuse for people who contact parliamentarians to be subject to blanket surveillance by the security services.”

Lucas and Jones are now calling on the government to include specific protections for MPs and peers in upcoming legislation on surveillance. No 10 welcomed the court ruling and denied that the Wilson doctrine had misled MPs by giving the impression that their phone and email exchanges were protected from the British security services when in reality they were not. It insisted that the intelligence services understood they could only use their powers to tap phones in a proportionate way, and there were safeguards in place. Downing Street described the Wilson doctrine first expressed in 1966 as a political statement, without legal force, and pointed out that the intelligence agencies might be monitoring an individual who was in contact with an MP.

It refused to say whether any MPs’ phones, either at Westminster or in their constituencies, were being currently being monitored by the intelligence agencies.

In the Commons, Bercow was pressed by several MPs including Alex Salmond, David Winnick, David Davis and Peter Bone to make the government clarify whether parliamentarians are currently being monitored by GCHQ.

Chris Bryant, the shadow leader of the House, asked a minister to come to the Commons to give a statement on the Wilson doctrine, but Chris Grayling, the leader of the House, declined to get up from his seat to offer an explanation.

Bryant said: “The freedom of members to be able to speak without fear or favour and without fear of being spied on by the government or any other agency is a vital part of us being able to do our jobs as representatives. It strikes at the heart of our liberties.”

Winnick, a Labour MP who was present at the time the Wilson doctrine was set out, said it would “grave disservice to parliament” if it was abandoned , while Bone, a Conservative, said MPs had exhausted all avenues in trying to get an answer out of the government themselves.

While sympathetic to the concerns, Bercow said it was not his place to pressure the government and suggested MPs submit an urgent question to ministers.

Rosa Curling, a solicitor with the law firm Leigh Day, which represented Lucas and Jones, said: “Promises made by successive prime ministers about the Wilson doctrine were not worth the paper they were written on.
“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.”

Sara Ogilvie, policy officer for Liberty, said: “Once again, the woeful inadequacies of our surveillance laws are laid bare. The impending investigatory powers bill presents a once-in-a-generation chance for MPs to legislate for strong, transparent protections for their constituents’ correspondence, and to end the undemocratic practice of suspicionless surveillance of us all.”

Matthew Rice, of Privacy International, said: “Today’s tribunal ruling that MPs should have no special protection from having their communications intercepted, confirms what Privacy International have been arguing for a long time: mass surveillance affects us all.

“Anyone who has exchanged emails with their MP about a sensitive matter should be aware that government snoopers may have access to this personal information. From charity workers to politicians, lawyers to refugees, it is of great concern that the UK’s surveillance regime cannot function without interfering with everyone’s right to privacy, regardless of their need for professional confidentiality.”