Home Secretary Jacqui Smith made a statement about the report of the Chief Surveillance Commissioner Sir Christopher Rose on the bugging scandal in HMP Woodhill, involving Sadiq Khan MP, Babar Ahmad (see the previous blog article) and also on the Wilson Doctrine and Legally Privileged conversations etc.
Without extending the Wilson Doctrine, she did make a promise to amend the existing Statutory Codes of Practice regarding Covert Surveillance, extending these to cover Members of the European Parliament and the Welsh Assembly (not Northern Ireland or Scotland where these are Devolved Matters). The policy regarding unelected Members of the House of Lords is now unclear.
The House will be aware that the 2000 Act also covers the interception of communications. That is a power that can only ever be used for limited purposes, and requires in each case the explicit prior authorisation of a Secretary of State. It is to interception, and to other surveillance requiring the approval of a Secretary of State, that the Wilson doctrine applies. Sir Christopher makes it clear that“the surveillance which I am investigating does not appear to me to be within the Wilson Doctrine, because it does not give rise to interception as defined by the legislation, nor would it require authorisation by the Secretary of State.”
This is in line with the Government’s stated position on the doctrine. As the facts set out in Sir Christopher’s report make clear, it is not relevant in this case.
However she went on to say
I referred earlier to the Wilson doctrine. Although that does not apply in this case, Sir Christopher does suggest that there is some scope for confusion as to the correct interrelationship between the Wilson doctrine and the legislation. The Government do not propose to amend the Wilson doctrine, but accept that current codes of practice do not fully clarify the extent to which reviewing officers and authorising officers should pay special attention to conversations involving or potentially involving a Member of Parliament. I am therefore announcing today that the Government will review the statutory codes of practice, and in particular that we intend to clarify that, as regards covert surveillance, conversations between Members of Parliament doing their constituency business and their constituents should be considered as “confidential information”, and treated in the same way as other confidential information, such as conversations between a person and their lawyer or minister of religion. That will more clearly give such conversations additional protection.
We think that this "confidential information" also applies to medical conversations between a doctor and patient, and if it does not, then it should.
What about confidential journalistic information and sources, of which there is some mention in the Codes of Practice ? That must also be clarified in any review.
Presumably the Home Secretary Jacqui Smith intends to amend this Statutory Code of Practice: Covert Surveillance - Code of Practice, Pursuant to section 71 of the Regulation of Investigatory Powers Act 2000 (.pdf 58 pages), particularly "Chapter 3 Special rules on authorisations" and "Annex A Authorisation levels when knowledge of confidential information is likely to be acquired". This Code of Practice also applies to the Police Act 1997 Part III
What about the Codes of Practice for Communications Traffic Data (RIPA Part I Chapter II) and for access to Encryption Keys and Data (RIPA Part III) ? These can also impinge on confidential constituency business.
A few annotations on the debate about this Statement, during which Jacqui Smith made further promises:
Codes of Practice, when mentioned in primary legislation (Acts of Parliament) or secondary legislation (Statutory Instruments, Orders in Council,) are meant to clarify and limit the language of the legislation.
They are not in themselves new laws, but they do act as the basis of, say, Police operating procedures, and if something is done which goes against what is in the Statutory Code of Practice, it will usually be sufficient for it to be then inadmissible as evidence, and could lead to a mistrial, or a withdrawal of charges, or an acquittal in Court.
Such Codes of Practice can simply be amended by Order of a Secretary of State, so they do not require new legislation, and will be rubber stamped by Parliament.
How much extra protection these amended Codes of Practice will actually mean is questionable.
All that they do is increase the rank at which such authorisations for covert intrusive or directed surveillance must be authorised at, essentially to the level of Chief Constable of a Police Force or Assistant Commissioner level of the Metropolitan Police Service - the same level at which the Woodhill Prison scandal was authorised at anyway.
Surely exceptional intrusive or directed surveillance of "confidential information" needs to be authorised by an independent Judicial Warrant, rather than simply by a Policeman ?
Jacqui Smith used the word "review", but later on in the debate, in reply to the Conservative front bench spokesman Dominic Grieve, she did say
21 Feb 2008 : Column 540
[...] However, it is precisely in order to ensure that there is clear guidance about the way in which an MP’s conversations with a constituent should be treated that I propose the changes to the codes that I outlined in my statement.
In response to the Labour chairman of the Home Affairs Committee Keith Vaz, she said:
Jacqui Smith: On my right hon. Friend’s first point, I am proposing not a review but action to amend the codes. That amendment will require detailed consultation with the relevant public authorities and, of course, it will also require public consultation and the opportunity for debate in this House. I intend that all that work will be completed within this calendar year.
We will be monitoring the progress,or lack thereof, with this promised consultation and amendment process.
In response to Tom Brake for the Liberal Democrats: Jacqui Smith said:
Jacqui Smith: In relation to the hon. Gentleman’s penultimate point, it is precisely because I feel that the guidance, and in fact the statutory codes of practice, relating to RIPA should clarify the position with respect to those who review and monitor and authorise any conversations that might involve a constituency MP on constituency business that I have announced and propose today that we should amend the codes.
On the hon. Gentleman’s first point, about the Wilson doctrine, he referred to the view of the then interception of communications commissioner that there was potentially no longer a place for the doctrine. That point was fully responded to in a written ministerial statement on 30 March 2006 by the previous Prime Minister, who concluded at that time that the Wilson doctrine should be maintained. That position was subsequently confirmed by my right hon. Friend the Prime Minister.
In response to the German born Labour MP Gisela Stuart, Jacqui Smith made an interesting concession:
Jacqui Smith: It has subsequently been confirmed that the Wilson doctrine does not apply to those office holders. However, I confirm that it is my intention that the work to extend the scope of the definition of confidential information in the codes of practice will explicitly include constituency work by MPs, and that it will extend to Members of the European Parliament and of the Welsh devolved Administration. Before anybody asks, extension of that kind in Scotland and Northern Ireland would be a matter for their devolved Administrations to take forward in parallel.
Although not many people realise it, you are allowed to lobby Members of the European Parliament from any of the European Union states, not just those elcted in the UK. MEPs belong to multi-national groupings within the European Parliament, and there may, in the future, actually be multi-national political parties elected to the Parliament. Therefore, this extension Confidential Privilege to the constituency business of Members of the European Parliament must also extend to foreign MEPs as well as to UK ones.
Does this "definition of confidential information in the codes of practice" apply covert surveillance of Members of the House of Lords or not ? They are covered under the Wilson Doctrine for "Interception", but, since they have no "constituency", but are, nevertheless lobbied by the electorate, we hope that a clear statement about their position is made soon by the Home Office spokesman Lord West of Spithead.
In reply the Labour MP in whose constituency Woodhill Prison is located, Dr. Phyllis Starkey , Jacqui SMith confirmed that the "confidential information" code of practice applies to surveillance by prison staff, or others, as well as by the Police:
Jacqui Smith: Yes, I can confirm to my hon. Friend that the statutory code of practice that will relate to covert surveillance will include all those involved in the review, monitoring or authorisation of covert surveillance. I agree that it is important that the review was carried out quickly, not least for those who are clearly working hard in Her Majesty’s Prison Woodhill.Apparently,
Jacqui Smith: It is illegal for foreign intelligence agencies to operate in this country.
Somehow, that does not actually stop them from doing so !