Wilson Doctrine

Introduction

Following a spate of scandals involving alleged telephone bugging of MPs, Prime Minister Harold Wilson gave a pledge to MPs that their phones would not be tapped:

However the pledge was qualified in two respects, as the Interception of Communications Commissioner made clear in his 2005–06 Annual Report:

This meant that the Prime Minister could reverse the doctrine in the interests of national security, and that he did not need to reveal such to the House of Commons until he chose to do so.

Re-assessment

Subsequent prime ministers have regularly confirmed that the ban remains in place, but in January 2006 the Interception of Communications Commissioner, Swinton Thomas, asked the government to reconsider the implications of the doctrine on the regulatory framework established under the Regulation of Investigatory Powers Act 2000. Prime Minister Tony Blair confirmed he would be considering whether or not the ban should be lifted, in order to comply with the act.

However, in March 2006 – in a written ministerial statement – Tony Blair said that following a period of fresh consultation, he had decided the 'Wilson doctrine' would remain in place.

In February 2007, Thomas again called for the ban to be removed, saying:

It is fundamental to the constitution of this country that no one is above the law or is seen to be above the law. But in this instance, MPs and peers are anything but equal with the rest of the citizens of this country and are above the law.

In September 2007 Prime Minister Gordon Brown reaffirmed the doctrine as "The Wilson Doctrine applies to all forms of interception that are subject to authorisation by Secretary of State warrant."

Public debate

In February 2008 it was reported that Sadiq Khan, who was then an MP, had been bugged whilst talking to a constituent in Woodhill Prison. However, since this appeared to have been a face-to-face conversation, even if it was bugged, it may not have been a literal breach of the Wilson Doctrine. An inquiry was launched by Justice Secretary Jack Straw.

Further questions about the validity of the doctrine arose in November 2008 after the home and parliamentary offices of Damian Green MP were searched by the Metropolitan Police. Other questions in the Lords asked whether communications which had been stored were protected by the same doctrine.

2015 Investigatory Powers Tribunal case

Following the global surveillance disclosures by Edward Snowden, three parliamentarians took a case in 2015 to the Investigatory Powers Tribunal (IPT) that the Wilson Doctrine was being broken. GCHQ's QC argued that the Wilson Doctrine "does not have force in law and cannot impose legal restraints on the agencies", so the doctrine only has a political effect, and that excluding politicians from mass surveillance was not feasible. The IPT ruled in favour of GCHQ in October 2015. Subsequently, the Home Secretary said in Parliament that the protection of MPs' communications from being intercepted still applies but does not extend to a blanket ban on surveillance.

Investigatory Powers Act 2016

The Investigatory Powers Act 2016 does not codify the Wilson Doctrine, in that it does not forbid the interception of communications of MPs. However, it does codify the prime minister's power to maintain or reverse this ban, and adds an extra hurdle to cross before this interception can happen, in that section 26 provides that warrants to intercept the communications of MPs, Lords, and members of the devolved legislatures must also gain the authorisation of the Prime Minister (as well as the relevant Secretary of State and a Judicial Commissioner as for all other IPA warrants). Until exit day it also applied to members of the European Parliament elected for the UK. This provision came into force on 31 May 2018.

References

References

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19. {{cite legislation UK. (2016)
20. {{cite legislation UK. (2018)