The Investigatory Powers Tribunal (the ‘Tribunal’) has made clear that the so-called Wilson Doctrine is not enforceable in English law and therefore that ministers’ and peers’ private conversations over email and phone are not protected from interception by the Government Communications Headquarters (GCHQ).
The Wilson Doctrine refers to the ban on phone tapping of MPs and peers’ phones introduced by former Prime Minister Harold Wilson in 1966. This was then extended in 1997 by the then Prime Minister, Tony Blair, who declared that the doctrine extended to electronic communication, including emails.
The Tribunal held that the Wilson Doctrine did not form part of substantive law and instead limited it to “a political statement in a political context.” The decision was in response to a claim brought by two Green party parliamentarians: Caroline Lucas and Jenny Jones. They had complained that disclosures by the whistle-blower Edward Snowden made it clear that GCHQ was capturing their communications.
The Tribunal decision has been widely condemned both by MPs and civil society groups. Caroline Lucas MP denounced the judgement as “a body-blow for parliamentary democracy.” Lady Jones similarly criticised the undemocratic nature of the intrusions: “Our job is to hold the executive to account, and to do that effectively it’s crucial that people feel they can contact us without their communications being monitored.” Matthew Rice, of Privacy International, said: “Today’s tribunal ruling that MPs should have no special protection from having their communications intercepted, confirms what Privacy International have been arguing for a long time: mass surveillance affects us all.”
The ruling has prompted calls for specific protections for MPs and peers in upcoming legislation on surveillance. Sara Ogilvie, policy officer for Liberty, said “The impending investigatory powers bill presents a once-in-a-generation chance for MPs to legislate for strong, transparent protections for their constituents’ correspondence, and to end the undemocratic practice of suspicion less surveillance of us all.”