The secretive Investigatory Powers Tribunal, which always seems to side with the Whitehall securocrats at the expense of ordinary, innocent people, has done it again with their judgment on the Wilson Doctrine
Spy Blog has always assumed that the deliberate vagueness and extreme brevity of any official Answers to Parliamentary Questions about the Wilson Doctrine, even as it has changed slightly over the years, meant that the public and Parliamentarians were being lied to by Downing Street regarding the confidentiality of the communications between Members of Parliament and their Constituents.
IPT/14/79/CH IPT/14/80/CH IPT/14/172/CH
Caroline Lucas MP, Baroness Jones of Moulsecoomb AM, George Galloway vs. the Security Service, SIS, GCHQ
The Tribunal heard and resolved issues relating to the status, meaning and effect of what has been called the Harold Wilson Doctrine, or the Wilson Doctrine, originating in the statement in the
House of Commons on 17 November 1966 by the Rt Hon Harold Wilson, the then Prime Minister. The Tribunal made declarations that the Wilson Doctrine applies only to targeted, and not
incidental, interception of Parliamentary communications, but that it has no legal effect, save that in practice the Security and Intelligence Agencies must comply with their own Guidance,
which has now been disclosed in the Judgment.
Full judgment (.pdf 25 pages) http://www.ipt-uk.com/docs/Caroline_Lucas_JUDGMENT.pdf
10. There are relevant passages in the Codes, to which we are satisfied the Home Secretary was referring: the Interception of Communications Code of Practice pursuant to Section 71 of RIPA in force until this year ("the Code") does not make express reference to communications between parliamentarians and their constituents as being confidential, in that such communications are not listed among the examples given, but they are particularised in the new draft Code which has been de facto in operation since the beginning of this year, and complied with by the Security and Intelligence Agencies, although it has been the subject of consultation and has not yet been put before or approved by Parliament ("the Draft Code").
How can this possibly be compliant with Human Rights Act 1998 ECHR Article 8 Right to respect for private and family life "in accordance with law", when the supposed protections are still only a Draft Code of Practice which has not been approved by Parliament or are internal Intelligence Agency Guidance, which has no legal force at all ?
Liberty/Privacy provides, particularly having regard to the well-established proposition as to the reduced foreseeability required in the field of national security, a sufficient and adequate system for ECHR purposes, and one which does not require the Wilson Doctrine to underlie it. Unlike journalists' and lawyers' communications, there is no ECHR authority for enhanced protection for parliamentarians. There are very good reasons, as Sir Swinton Thomas pointed out, for parliamentarians not being treated differently from other citizens. The s.5 RIPA criteria and the approved interception regimes, including other statutory provisions for the respective Agencies, impose and signal a high threshold for interception. It is not necessary for this Tribunal to make new law. Moreover any attempt to do so would entail inventing a new code to define the types of communications covered and where lines are to be drawn. 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.
Answers to the preliminary issues
33. The Tribunal accordingly answers the preliminary issues attached to this judgment as follows:i) The Wilson Doctrine does not apply to s.8(4) warrants at the stage of issue.
ii) It applies to targeted, but not incidental, interception of parliamentarians' communications both in respect of s.8(1) warrants at date of issue and in respect of s.8(4) warrants at the date of accessing/selecting such communications.
iii) The Wilson Doctrine does not operate so as to create a substantive legitimate expectation.
iv) The Wilson Doctrine has no legal effect, but in practice the Agencies must comply with the Draft Code and with their own Guidance.
v) The regime for the interception of parliamentarians' communications is in accordance with the law under Article 8(2) and prescribed by law under Article 10(2), in particular by reference to s.5(3) of RIPA.
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 would be truer to say that
"MPs'communications with their constituents and others are unprotected, like those of every other person"
"That regime is insufficient to protect such communications"
- What now, that the Wilson Doctrine is effectively dead ?
There is a 3 hour Emergency Debate in the House of Commons on the Wilson Doctrine from some time after 14:30, tomorrow Monday 19th October 2015.
Will Her Majesty's Opposition hold the Government to account over this shoddy deception ? Or will the Corbynistas be overshadowed by the Scottish Nationalists ? Will the handful of Conservative MPs who seem to care about liberty and privacy and freedom have any effect on the Government ?
At a guess the Government will pretend that the the still only Draft Code of Practice is somehow important, even though it is the "incidental interception" on a massive industrial scale by GCHQ and our 5 Eyes intelligence foreign agency partners which is the threat to the privacy of a Constituent's emails or mobile phone or landline phone or postal communications with their Member of Parliament.
How can an MP be trusted with any sensitive personal or legal or whistleblower information, from their Constituents, especially if it pertains to a complaint against or wrongdoing by a branch of the UK Government, when there is no legal protection for such communications at all ?
- OPSEC and COMSEC training for MPs etc.
The Open Rights Group has offered to help to train Members of Parliament (and other UK elected representatives not covered by the Wilson Doctrine in the Scottish Parliament, Welsh Assembly, Northern Ireland Assembly and the European Parliament) in the sort of secure digital communications techniques involving risk assessment, personal computers and smartphones etc. which journalists and political activists have had to resort to
These same techniques can be used to help to hide MPs' shady private and business lives, but that is a price worth paying for access to our democratically elected representatives, without UK or other Government snooping.
Spy Blog has some experience with organising and teaching at CryptoParty events in London and even started to organise one for MPs, Peers or their staff in the last Parliament, until it became obvious that MPs didn't care about such things, by rushing the badly scrutinised Data Retention and Investigatory Powers Act through in an unnecessary hurry.
Perhaps there will be more interest in such techniques by our elected representatives after this Wilson Doctrine debacle.
Unless and until Members of Parliament who criticise the Government over the Wilson Doctrine start to do things like using and publishing a PGP / GPG Public Encryption Key for their Constituency or Campaign business, nothing will change, and the public will become even more alienated from untrustworthy politicians and bureaucrats.