Rt. Hon. Sir Swinton Thomas, the now retired Interception of Communications Commissioner has a large section in his delayed report: Report of the Interception of Communications Commissioner for 2005-2006 (.pdf 19 pages), which discusses the constitutional issues resulting from the "Wilson Doctrine".
Spy Blog seems to have written as much about this topic as anyone else (see our Wilson Doctrine category archive) so here are some more of our notes and opinions, some of which disagree with Rt. Hon. Sir Swinton Thomas :
The Wilson Doctrine
47. On 17 November 1966, Mr Harold Wilson the then Prime Minister, made a statement in the House of Commons that there would be no tapping of the telephones of Members of Parliament but if there was any development of a kind which 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 of Commons.
This is not available in the online version of Hansard, so see our "Wilson Doctrine" - Prime Minister Harold Wilson answers Oral Questions in the House of Commons 17th November 1966 - transcript
Subsequently, it has been confirmed that the Doctrine applies to all forms of communication, to Members of the House of Lords, and to electronic eavesdropping by the intelligence agencies. The Doctrine has remained in force ever since, and on 30 March 2006, the Prime Minister, Mr Tony Blair, said in answer to a question that the Wilson Doctrine would be maintained.
It is an issue which falls squarely within the responsibilities placed on the Interception of Communications Commissioner by Parliament by Section 57 of the Regulation of Investigatory Powers Act 2000.
48. The Doctrine may have been defensible when it was first enunciated in 1966 when there was no legislation governing interception and there was no independent oversight. In 1966 there was no requirement for a warrant with all the safeguards that are attached to that operation now.
49. Now, in 2006, the interception of communications is the primary source of intelligence in relation to serious crime and terrorism and is strictly regulated. The Doctrine means that MPs and Peers can engage in serious crime or terrorism without running the risk of being investigated in the same way as any other member of the public. In the course of many meetings I have had with Ministers and Members of Parliament, it has become clear that many are determined that that state of affairs should continue.
50. It is fundamental to the Constitution of this country that no-one is above the law or is seen to be above the law. But in this instance, MPs and Peers are anything but equal with the rest of the citizens of this country and are above the law.
Members of Parliament have historically developed Parliamentary Privilege, to allow them to criticise people or institutions, without the fear of prosecution for libel etc., so in that sense, they are above the law, and being seen to be above the law, is an important constitutional safeguard for the rest of us.
51. Some MPs may fear that the situation now is the same as it was in 1966 when it was at least theoretically possible for the Executive to intercept communications for its own purpose but it is not, for the following reasons –
i. For there to be interception, there must be a Warrant in place, signed by the Secretary of State authorising the interception.
ii. The grounds for doing so are very limited by Section 5(3) of the Act. They are essentially National Security (including terrorism) and the prevention or detection of serious crime.
iii. There is oversight by the Commissioner to prevent wrongful use, and I have made it clear that the Commissioner would personally ensure that there was no improper interception of the communications of any public figure.
Since the Interception of Communications Commissioner only deals with intercepted data or communications traffic data at the level of authorisations, warrants and certificates, how can he possibly "personally ensure that there is no improper interception of the communications of a public figure", when dealing with large scale data warehousing and data mining ?
How exactly does Rt. Hon. Sir Swinton Thomas define "any public figure" ?
Members of the Royal Family who are also Peers of the Realm and could sit in the House of Lords ? Members of the Royal Family who are not so eligible e.g. Her Majesty the Queen ? England Footballers and their Wives and Girlfriends ? "Big Brother" voyeurism TV show "celebrities" ?
iv. It is important to appreciate that in reality it is impossible to achieve the interception of a telephone conversation by a Government Agency without a Warrant and the safeguards attached to it. So those who support the retention of this particular privilege have nothing to fear unless they are engaging in terrorism or serious crime.
There are plenty of reasons to fear Government snooping, even if you are not involved in terrorism or serious crime, especially if you are a "whistleblower", working within some branch of the Government itself, and are trying to contact a Member of Parliament for political support.
For some reason, Rt. Hon. Sir Swinton Thomas is not making any distinction between official Parliamentary office phones and email accounts etc. and private ones belonging to members of the Commons or the Lords.
This distinction was noted on 17th November 1966, when the "Wilson Doctrine" was first uttered by the Prime Minister Harold Wilson:
Mr. Gordon Walker : I am very glad to hear the Prime Minister's decision that no hon. Members' telephones should be tapped, but would he agree that in principle, there is a distinction between the privilege of a Member concerned in some proceedings in Parliament, and the similarity of all Members with ordinary citizens in all other respects, and that it is important that this principle should be maintained and asserted?
The Prime Minister: I certainly agree about that and I do not myself believe that this involves a question of privilege, as we understand it in the narrow sense in this House. My original Answer was drafted to make that clear. Someone has to take the decision one side or the other of this very, very difficult balance. With my concept of responsibilities to the House, I feel that, although the arguments are finely argued in the Report of the Privy Councillors, it has been right to alter the practice and to say that there should be no tapping whatsoever.
People who contact members of Parliament, either their own constituency MPs, or chairmen of committees etc., to complain about the Government, or to reveal some scandal as a "whistleblower", or simply to lobby MPs or Peers to try to influence them to vote in a particular way, should not be inhibited from doing so, by the fear that the Government or its agencies are monitoring their conversations or correspondence with members of Parliament.
MPs in the "Westminster Village" are cut off enough from the real world as it is.
v. The interception of communications is the most important investigative tool in the investigation of serious crime, such as fraud, drug smuggling, the downloading of child pornography, sexual offences with minors and perjury. Of course, I do not think that Members of Parliament are engaging in serious crime and terrorism. Indeed I have the greatest respect for our democratic institutions. However to maintain that no MP or Peer ever has or ever will engage in serious crime is absurd.
vi. Nonetheless it is clear to me that a number of Ministers and many MPs from the Speaker of the House of Commons downwards, who I have spoken to on this subject, are determined to maintain this privileged status.
52. There are three further important points to be made:
i. The Security Services and Law Enforcement Agencies are not remotely interested in acquiring personal information about Members of Parliament or, indeed, other citizens, except in strict observance of their statutory functions.
Given the excessive secrecy and lack of transparency of these intelligences services, large sections of the public simply do not believe such assurances. That is especially true in Northern Ireland.
Why should the British agencies be different , say, from the French authorities under President Mitterand, who , using the same excuse of "national security" and "anti-terrorism", snooped on and bugged and intercepted the communications of political allies, rivals and people in public life on the orders of Francois Mitterand ?
Given the evasiveness of Chancellor of the Exchequer Gordon Brown over the SWIFT international financial transaction electronic messaging system scandal in the USA, why should the British public believe that their private communications data, their electronic financial transactions and the content of their internet and phone communications, is not being subjected to large scale data mining, as evidenced by the warrantless National Security Agency activities, again, under the excuse of "anti-terrorism", but which was being used to investigate tax evasion, and which could easily have been abused for "insider trading" purposes ?
Moreover, for the reasons set out above, it would not be possible for them to do so. I can say this with confidence after six years in my current post. It is also very important to remember that most investigations of serious crime are carried out at least in substantial part, by interception.
ii. It is in truth all but impossible for an intercepting agency to intercept telephone conversations unlawfully by deliberate means. Interception of the communications of a citizen by an intercepting agency can only take place with a Warrant based on serious crime or national security grounds. Before a Warrant can be granted, it must be shown that there is evidence already in place that the person concerned is involved with serious crime or terrorism. It has to be considered by senior departmental officials and, if deficient, it is rejected at that stage. It then goes to the Secretary of State. It would, in my experience, be inconceivable and exceedingly dangerous for him or her to sign a Warrant on improper grounds. And, finally, in this context, it will be seen by the Commissioner who must ensure that no improper interception takes place. It is also worth noting that since 1994: a.) all three intelligence agencies operate under statute; b.) they are overseen by the parliamentarians of the Intelligence and Security Committee and the Intelligence Services Commissioner both of whom are independent of government; c.] they are subject to a complaints procedure under the independent Investigatory Powers Tribunal; and that d.] Sections 2(2)(b) and 4(2)(b) of the Intelligence Services Act 1989 and Section 2(2)(b) of the Security Service Act prevent those services from taking “any action to further the interests of any political party”.
There are other people, apart from the 3 intelligence agencies, who may well have the equipment and knowledge to conduct electronic intercepts and communications traffic data snooping, without falling under these bits of legislation, or the the Police departments of the Ministry of Defence e.g. the Special Forces Support Group or the Special Forces Reconnaissance and Surveillance Regiment
Not all interception of communications or communications traffic data snooping occurs centrally at a Communications Service Provider. It could also be done by private investigators who turn up at , say a bank, and who may be working for, the Treasury, claiming "anti-terrorism finance investigation" or "international trade sanctions" powers, or for the Department for Work and Pensions investigating "benefit fraud" under legacy legislation, independent of the Regulation of Investigatory Powers Act 2000.
53. When he made his statement in the House of Commons on 13 March 2006, the Prime Minister was kind enough to make reference to the advice that I had given to him to the effect that the Wilson Doctrine was at the present time in the changed circumstances unsustainable.
Surely this should read as the statement of the 30th of March 2006, rather than the 13th ?
I understand, and have sympathy with the Prime Minister in the circumstances in which he was placed, namely strong opposition within the Cabinet and in the House of Commons to any change in the current position. I recognise that ending the Doctrine might put pressure on the Prime Minister to disclose whether the prohibition of telephone tapping of Members of Parliament has been maintained since 1966 and, if not, to make a statement on the circumstances of its ending. I do not consider that this is any argument to the contrary. I have no doubt that the Prime Minister could readily deal with this issue particularly bearing in mind Section 19 of the Regulation of Investigatory Powers Act which requires that interception matters shall be kept secret.
54. What is more difficult to understand is the basis of opposition apart from self-interest or, possibly, lack of understanding, in the maintenance of a privilege enjoyed by nobody else, given that there are perfectly adequate safeguards in place that serve MPs and non-MPs alike. In the conversations that I have had with Ministers and members of Parliament on this issue, I have not been able to find any logical, and, certainly not, any principled objection to change apart from self interest. After this issue received some media publicity earlier this year, a number of people have spoken to me, both within and outside legal and intelligence circles, and the reaction has been one of astonishment and incredulity that this situation should be allowed to continue.
55. To the best of my knowledge, there is no other country in the world that provides the privilege to its elected representatives and Peers to be immune from having their communications lawfully intercepted with the accompanying advantage that they may be immune from criminal investigation and prosecution.
There is no immunity from criminal investigation and prosecution for Members of the House of Commons or the House of Lords, even though Parliamentary Privilege protects them from some civil court cases. e.g. the arrest of Lord Levy on suspicion of conspiracy to pervert the course of justice, over the "cash for honours" scandal allegations.
Interception of communications is not the only investigative technique.
56. The Wilson Doctrine applies to MPs and Peers but cannot apply to Members of the European Parliament or Members of the Scottish Parliament or Members of the Welsh or Northern Ireland Assemblies. It is plainly right that it should not but it provides a striking illogicality.
We agree that it is illogical for democratically elected representatives of these Assemblies and parliaments to be treated differently from elected Members of the House of Commons or unelected members of the House of Lords in Westminster.
What about foreign, non-UK Members of the European Parliament ?
What about the Tynwald in the Isle of Man, the States Assembly of Jersey or the States of Deliberation of Guernsey ?
What about the parliaments and assemblies of British Overseas Territories ? i.e. Gibraltar; Anguilla; Bermuda; British Antarctic Territory; British Indian Ocean Territory; Cayman Islands; Falkland Islands; Montserrat; Pitcairn, Henderson, Ducie and Oeno Islands;
St. Helena and Dependencies, South Georgia and the South Sandwich Islands; The Sovereign Base Areas of Akrotiri and Dhekelia in the Island of Cyprus; Turks and Caicos Islands; Virgin Islands ?
In our view , all of these should have the "Wilson Doctrine" applied to their public, official telephones and email accounts etc., so as not to inhibit confidential communications with the general public who have elected them, or who they are appointed to represent, especially when in opposition to the Government and its agencies.
57. In my view the Doctrine flies in the face of our Constitution and is wrong. I do not think that it provides MPs with additional protection. I think in fact that it is damaging to them.
Why did Rt. Hon. Sir Swinton Thomas not make this Constitutional criticism of the "Wilson Doctrine" in his very first Annual report for 2000 (.pdf), published in October 2001 ?
The European Parliament, the National Assembly of Wales, the Scottish Parliament, were all established prior to the Regulation of Investigatory Powers Act 2000.
What had changed in December 2005, when he gave his advice to the Prime Minister ? Were there actually some requests in the pipeline to Intercept the communications, or to gather the Communications Traffic Data of some MPs or Peers ?
It is still unclear to us if Communications Traffic Data, which is not the same as Interception under RIPA, is included in the "Wilson Doctrine" or not.