If this latest ruling by the judicial body that oversees complaints relating to the U.K’s intelligence agencies doesn’t ratchet up political pressure for reform of mass surveillance powers in the U.K. then surely little else will — given it pertains to the sanctity of politicians’ communications.
The U.K.’s Investigatory Powers Tribunal (IPT) has today ruled that MPs’ and Peers’ private communications are not exempt from spying — overturning a perception of special privilege stemming from the so-called ‘Wilson Doctrine’. The Wilson Doctrine refers to comments made in 1966 by the then Prime Minister Harold Wilson, who had pledged that MPs and Peers’ phones would not be tapped. The doctrine was later extended to apply to emails by former PM Tony Blair.
But in an announcement today the IPT said the Wilson Doctrine has “no legal effect”, beyond the security and intelligence agencies needing to comply with their own “guidance” when it comes to intercepting parliamentary communications. The tribunal also specified that the doctrine applies “only to targeted, and not incidental, interception of Parliamentary communications”.
This gets to the nub of the problem with dragnet surveillance. If your surveillance apparatus functions by gathering data indiscriminately and then filtering after the fact — as the Snowden disclosures revealed government intelligence programs do indeed operate, including in the U.K. — it follows that “incidental” interception of all sorts of communications is a given.
And that means the potential for all sorts of privileged and/or sensitive comms to be sucked up — whether it’s the private correspondence of MPs with constituents, or lawyers with clients, or journalists with sources… And so we get to a situation where the U.K. spy agencies’ oversight court thinks it’s acceptable that politicians’ comms be sucked up into the dragnet, along with everyone else’s.
It remains to be seen how well this view will play with U.K. politicians when they come to debate changes to domestic surveillance powers this autumn, however.
“We are satisfied that the Wilson Doctrine is not enforceable in English law by the Claimants or other MPs or peers by way of legitimate expectation,” the tribunal writes in the judgement today.
“It is clear to us that the Wilson Doctrine as now constituted is as explained by Mrs May in July 2014 — whether or not there is a need for a further statement by the Prime Minister in Parliament to emphasise the changes and comply with Mr Wilson’s (unenforceable) promise,” it adds, referring to a July 2014 statement made in the House of Commons by current Home Secretary Theresa May, who was responding to a question about the Wilson Doctrine.
At the time, she stated:
Obviously, the Wilson Doctrine applies to parliamentarians. It does not absolutely exclude the use of these powers against parliamentarians, but it sets certain requirements for those powers to be used in relation to a parliamentarian. It is not the case that parliamentarians are excluded and nobody else in the country is, but there is a certain set of rules and protocols that have to be met if there is a requirement to use any of these powers against a parliamentarian.
The IPT’s ruling today goes on to note that specific interception of parliamentary comms is governed by existing legislation: “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.”
The complaint was brought to the IPT by two members of the Green Party, Caroline Lucas and Jenny Jones, and former MP George Galloway.
In a statement responding to the ruling, Lucas described it as “a body blow for parliamentary democracy”, adding: “My constituents have a right to know that their communications with me aren’t subject to blanket surveillance — yet this ruling suggests that they have no such protection.
“Parliamentarians must be a trusted source for whistle blowers and those wishing to challenge the actions of the Government. That’s why upcoming legislation on surveillance must include a provision to protect the communications of MPs, Peers, MSPs, AMs and MEPS from extra-judicial spying.”
She also criticized the government for making “deliberately ambiguous” statements on the Wilson Doctrine — noting that ministers have stated as recently as this week that protection from blanket surveillance does still apply to parliamentarians.
The government is in the process of redrafting surveillance legislation, with a forthcoming Investigatory Powers Bill due to be debated in Parliament this autumn. However the government’s priorities for updating legislation in this area have focused on plugging so-called “capability gaps” for intelligence agencies, rather than on restricting or rolling back digital surveillance — so the bill is widely expected to seek to expand powers, with fears of a new U.K. ‘Snoopers’ Charter’ incoming.
The Prime Minister has also been critical of the growth in use of strong encryption by consumer technology companies — making comments that suggest he favors the use of backdoors in services to afford continued access to user data for intelligence agencies.
Despite the U.K. government’s hawkish stance on surveillance, several independent reviews of domestic legislation in this area have called for greater checks and balances on the surveillance state. For instance, the Anderson report, published in June, called for intercept warrants to be signed off by judges, rather than leaving authorization in the hands of ministers — with Anderson arguing that “strict additional safeguards” are necessary to justify U.K. intelligence agencies having bulk interception and data retention powers.
There is at least widespread agreement among U.K. MPs of the need to replace RIPA — the problematic legislation that currently oversees surveillance activity, and which dates back to 2000. In a parliamentary debate this summer on the forthcoming legislative changes to investigatory powers, Conservative MP Dominic Grieve said RIPA “clearly” needs replacing, adding that certain elements of the law appeared “deliberately opaque”.
The draft Investigatory Powers Bill is expected to be published this month.