A ruling of the Investigatory Powers Tribunal in the case brought by MP Caroline Lucas, peer Baroness Jones of Moulsecoomb and former MP George Galloway, has effectively confirmed the death of the Wilson Doctrine, which was thought to protect the communications of MPs and members of the House of Lords. Indeed, to a great extent it confirmed that this doctrine had always been a bit of a fiction, despite being confirmed at various stages by Margaret Thatcher, Tony Blair, Gordon Brown and Theresa May – the latter as recently as July this year. ‘Obviously,’ Theresa May told the House of Commons in the all-too-short debate that made up the shabby process that pushed the Data Retention and Investigatory Powers Act through Parliament in double quick time, ‘the Wilson Doctrine applies to parliamentarians’. And yet, in practice, it doesn’t and it didn’t.
What does apply, as the Investigatory Powers Tribunal details, is a set of codes of practice and guidelines that are intended to govern the interception of communications in general, and which have some specific mentions of Members of Parliament. That these codes of practice have only come into the public eye recently – and in part because of legal actions taken by NGOs Liberty and Privacy International – and that they have unclear (and probably non-existent) legal enforceability, and some exist only in draft form just adds to the lack of clarity in the area. There can (and will) be many technical discussions about the ruling and its precise implications, but I do not propose to go into them here. Instead, I want to look at the bigger questions. The only overall conclusion that can be drawn from the ruling is that the Wilson Doctrine is effectively dead. The biggest question is whether that matters in any real way.
Do MPs deserve special protection?
It would be fair to say that MPs do not have a great reputation these days, if they ever have. They’re rarely considered honest or trustworthy, suspected of feathering their own nests through the expenses system, of being in the hands of lobbyists and largely only in it for themselves. There is a tendency to think that rather than their deserving more privacy than ‘ordinary’ people, they deserve less – they should be more open to our scrutiny than they are, more exposed to the public, given that they are supposed to be serving the public.
There is certainly an element of truth in that – and things like the exposé of Malcolm Rifkind and Jack Straw’s lobbying activities seemed to receive a good deal of public support, even if the Commons Standards Committee ultimately exonerated them. And yet MPs communications do matter, and there are some very good reasons to give them special protection. The principle point isn’t to protect the MPs themselves, but the people who are communicating with them. When people contact their MPs, they are often in a vulnerable position. They might be whistle-blowers, they might feel themselves in danger – what they are very likely to be doing is seeking help, and have nowhere else to turn. One of the key points about the Wilson Doctrine is not – or should not be – to protect MPs’ shady dealings with lobbyists or worse, but to protect the individual, vulnerable people who wish to communicate with them.
It’s easy not to feel sympathy for MPs. Indeed, it’s easy to feel anger, frustration or worse towards them – but they do play a critical role, and they are supposed to represent us. In that role, they need special protection, just as lawyers need special protection when communicating with their clients, and journalists with their sources. The point isn’t to protect the lawyers or journalists, but their clients and sources respectively.
One of the arguments that underpins the IPT’s ruling is that modern surveillance is different from that which existed in Wilson’s days – and that the oversight of that surveillance and the rules that govern it are better than what existed in Wilson’s days. The current system, according to this logic, the one based around the somewhat notorious RIPA, provides more oversight, more accountability and more transparency than has been seen before. As expressed in the ruling (para 34):
“MPs’ communications with their constituents and others are protected, like those of every other person, by the statutory regime established by Part 1 of RIPA 2000. The critical control is the requirement for a Secretary of State’s warrant, which can only be issued if the requirements of Section 5 are satisfied. That regime is sufficient to protect such communications and nothing further is required by the ECHR.”
It is a system that as the IPT points out has been found to be generally satisfactory by the European Court of Human Rights – though they do not note that the case in which this was found, Kennedy, was in 2011. This, critically, was before the revelations of Edward Snowden that ultimately suggested that our surveillance system is very, very different from what we (and presumably the ECtHR) thought it was.
Indeed, this latter point is really the key. Yes, since Wilson was PM we have a more detailed and rigorous legal regime surrounding interception of communications – but we also have a vastly different degree of interception going on. The number of ways that this interception goes on is enormous, and the arguments concerning it have not be resolved in any satisfactory way. Does interception ‘happen’ when data is gathered, or when it is accessed? Does gathering of meta-data constitute interception? Does algorithmic analysis of such data matter, or should we only be concerned when human intervention occurs? All these questions and many more are still very much under debate – to assume that the situation is clear and simple is to fundamentally misunderstand the current state of affairs. Even in the last few weeks, with the monumental invalidation of the Safe Harbor agreement, the US and the CJEU have disagreed fundamentally about what constitutes ‘indiscriminate surveillance’.
Further, the legal regime for surveillance, as review after review in the last year has pointed out, has not kept up with the nature of the surveillance, and the oversight has been revealed to be far, far less effective than it might be. The Intelligence and Security Committee has demonstrated itself to be little more than a rubber stamp body, engaging in little more than political theatre at times. Do we have effective oversight? The jury, I would say, is very much out on this: the clearly recognised need for reform of the laws governing surveillance puts it in severe doubt. The admission of the effective non-existence of the Wilson Doctrine makes this even clearer.
The need for reform
That puts yet another little bit of pressure on the need to reform. The forthcoming Investigatory Powers Bill is due to be published very shortly – will it have anything about the Wilson Doctrine in it? A parliamentary debate has been scheduled for Monday, specifically about the Wilson Doctrine, and I would hope that the question of whether to have anything specific about the Wilson Doctrine within the new bill, or within codes or regulations referred to in the bill, would be one of the issues discussed. Personally, I think our political representatives do need special protection, as do lawyers and journalists, but I think we all need more protection than we currently receive. I would also hope that the minds of MPs are focussed by a debate that actually impinges on their own activities, and that they can learn from this why all of us need and deserve privacy.