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MPs can no longer remain exempt from surveillance, lawyers concede

The 50-year-old political convention that the UK's intelligence agencies will not intercept the communications of MPs and members of the Lords cannot survive in an age of bulk interception, government lawyers have conceded.

The so-called Wilson doctrine "simply cannot work sensibly" when bulk interception is taking place, James Eadie QC told the investigatory powers tribunal - the court that hears complaints about the intelligence agencies.

Moreover, Eadie said on Friday, the doctrine does not have force in law and cannot impose legal restraints on the agencies.

The convention is named after the former Labour prime minister Harold Wilson, who told MPs in November 1966 that their phones would not be tapped. Tony Blair subsequently extended it to all forms of electronic communications.

The tribunal, which is being asked to rule that the doctrine is legally enforceable, has already heard that GCHQ changed its guidelines in March, when it decided not to apply the convention to members of the devolved parliaments in Scotland, Wales and Northern Ireland, and members of the European parliament.

That revelation has caused fury among members of those institutions: on Friday, the first minister of Scotland, Nicola Sturgeon, wrote to David Cameron asking for urgent clarification. Sturgeon said she accepted spying on MSPs could take place but only in "truly exceptional circumstances involving national security". In the vast majority of cases "the confidentiality of communications between parliamentarians and their constituents is of the utmost importance", she told the prime minister.

Labour's Ian Murray, the shadow Scottish secretary, tabled a series of questions in the Commons asking the prime minister to confirm or deny whether Scottish MSPs, MEPs or Welsh parliamentarians had ever been spied on, and to confirm that GCHQ's rules had changed.

The complaint at the IPT is being brought by the Green party parliamentarians Caroline Lucas and Lady Jones, and the former Respect MP, George Galloway, who argue that their communications must have been intercepted by the sort of programmes exposed by the CIA whistleblower Edward Snowden.

Eadie conceded that this may have happened under bulk interception operations authorised under the Regulation of Investigatory Powers Act (Ripa), but said "there is so much data flowing along the pipe" that it is not examined at the point of interception.

"The interception at that stage isn't in any event objectionable, if one stands back and takes a broad view of the Wilson doctrine: it isn't intelligible at the point of interception," said Eadie.

While ministers have repeatedly reassured MPs and peers that the doctrine remains intact, their statements have been characterised by "ambiguities, at best, whether deliberate or otherwise", Eadie said. And while the agencies consider the doctrine when drawing up policies governing interception practices, they also require great flexibility. Without this, "national security-critical" practices would become impermissible.

It was also the government's position that targeted interception operations, in which parliamentarians' communications were captured, were not unlawful as a consequence of the doctrine. Eadie said: "This doctrine hasn't any legal as opposed to political effect."

Ben Jaffey, counsel for Lucas and Jones, said the government's position had created "an Alice in Wonderland situation" in which ministers assured MPs that their communications were protected, and MPs conducted themselves accordingly, when the government knew there to be no such protection. "It's very hard to see how that state of affairs is in accordance with the law."

Wilson had said that if the ban he promised were to be lifted, the prime minister would inform MPs - at some point.

However, the IPT has heard that MI5, MI6 and GCHQ were all operating their own internal policies that did not require them to inform the prime minister when parliamentarians' communications were captured. Those polices were said to have been rewritten after Lucas and Jones launched their legal challenge last year.

At this point, GCHQ - which had interpreted the doctrine as applying to the devolved assemblies and parliaments of Scotland, Northern Ireland and Wales - concluded that it applied only to Westminster.

Jaffey pointed out that Sturgeon has the power to intercept warrants. He also said the tribunal should consider whether a secretary of state in London should be signing warrants that might result in the interception of the communications of parliamentarians from Scotland, Wales and Northern Ireland.

Lawyers for Lucas and Jones argue that MPs need to have private conversations with constituents and whistleblowers, and must be protected from intrusion by the intelligence agencies.

Jones said later that she could not believe it was a coincidence that the hearing at the IPT was held after both houses of parliament went into summer recess.

"Perhaps the government hoped the summer holidays would take the sting out of removing the safeguards we all thought existed," she said. "But even six weeks of rest won't fix this; there will be many howls of rage. I expect a backlash in the autumn when the next surveillance bill comes before us."

David Davis, former Tory shadow home secretary, said that Cameron needed to answer three questions: "Was the prime minister not told about this; or did a prime minister mislead the Commons; and why can't MPs' communications be screened out, rather than intercepted?"

The Labour MP Tom Watson, who successfully brought a high court challenge against emergency surveillance legislation with Davis, said he had received assurances from the home secretary, Theresa May, last year that the Wilson doctrine applied to all MPs.

"Either government policy has changed in the last year or Theresa May misled parliament," Watson said. He said that prime minsters have for decades reassured MPs the Wilson doctrine stands. "It's particularly interesting to read the lawyers argue the doctrine has no force in law. MPs have been treated like fools. Either Theresa May was telling the truth last year or the government lawyer was telling the truth today - and we need to find out."

Matthew Rice, advocacy officer at Privacy International, one of a number of campaign groups that challenged the legality of GCHQ's mass surveillance programme Prism at the IPT, said: "The Wilson doctrine is a vitally important convention that helps to maintain the democratic legitimacy of our government and protects them from being undermined.

"The government's acknowledgment that the doctrine is unworkable in the current practice of bulk collection is a confirmation of what many have been saying for a long time: mass surveillance affects us all.

"From charity workers to politicians, lawyers to refugees, there is no way of running the sort of programmes Snowden revealed without interfering with everyone's right to privacy, regardless of status or occupation. This is suspicionless surveillance and unless the government is now willing to make changes in the investigatory powers bill that protects the right to privacy, the Wilson doctrine will remain unenforceable."

Rachel Logan, legal programme director at Amnesty UK, which joined Privacy International in its claim against GCHQ, said: "At Amnesty we're well aware of the importance of confidential communications on sensitive work, and the impact of having that privacy violated, having been spied on by GCHQ ourselves.

"Like MPs, the people we talk to rely on and trust that confidentiality and so GCHQ's behaviour puts at risk our ability to do our jobs well. This just further illustrates why so-called bulk-collection, ie mass surveillance, is so damaging to a free society. If the privacy of our elected representatives is not safe from the spies' trawler net, whose is?"

The IPT is expected to issue its decision later in the year.

[Source: By Ian Cobain and Jamie Grierson, The Guardian, London, 24Jul15]

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Privacy and counterintelligence
small logoThis document has been published on 30Jul15 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.