Open Rights Group has written to all UK MPs to offer training to help them keep their communications private. We did this in response to this week’s ruling by the Investigatory Powers Tribunal (IPT) that the Wilson Doctrine does not protect MPs’ communications from surveillance by the intelligence agencies. We believe those communications should be protected.
The Wilson Doctrine is named after former Prime Minister Harold Wilson who in 1966, following a spate of scandals involving the alleged telephone-bugging of MPs, told the House of Commons that MPs’ phones would not be tapped. In 2002, Tony Blair said that the policy also applied to the “use of electronic surveillance by any of the three security and intelligence agencies”. In the aftermath of the Snowden revelations, Parliamentarians have asked repeatedly for the Government to clarify whether the Wilson Doctrine still applies. In addition, Caroline Lucas MP and Baroness Jones of Moulsecoomb asked the IPT whether the Wilson Doctrine prohibited the interception of their communications – including their confidential correspondence with constituents.
Yesterday’s Judgment settled the matter: MPs communications enjoy no special protection, despite the Wilson Doctrine, and their interception is governed by the Regulation of Investigatory Powers Act 2000 (RIPA). At the IPT, GCHQ argued the Wilson doctrine does not have force in law and cannot impose legal restraints on the agencies. The IPT agreed. We don’t know how long GCHQ have held this view and whether successive Prime Ministers were aware of their position.
The ruling has raised the question of whether parliamentarians' communications deserve greater protection than the rest of us. ORG believes that everyone has the right to communicate privately unless they are suspected of wrongdoing. However, some communications need more protection because the consequences of a breach of privacy would be severe, both for the individuals involved, and for society as a whole.
Our democratically-elected MPs should not be spied on by the security services unless there is a serious threat to national security. Protecting MPs' communications also protects constituents and whistleblowers who need to contact them in confidence. However, if systematic surveillance is in place, it is difficult to maintain confidentiality.
Other professions that need additional protections include lawyers and journalists. Both UK law and the European Court of Human Rights recognise that it is a fundamental human right for lawyers to communicate confidentially with their clients. This is seen as essential to ensure that people have the right to a fair trial. Earlier this year, another IPT ruling showed that policies on how the security services handle privileged communications between lawyers and their clients had breached human rights law.
The Press Gazette launched the Save our Sources campaign to prevent surveillance law being used to access journalists’ communications after it was revealed that the Met police used RIPA to access the phone records of Sun journalist Tom Newton-Dunn. Under the Police and Criminal Evidence Act 1984 (PACE), the police are required to get permission from a judge if they want to access a journalist’s records to identify a source. The fact that the police can still use RIPA instead of PACE to override this safeguard and the difficulty in defining exactly who is a journalist make this difficult to enforce.
The right to privacy should not be limited to certain professions but the fact that our surveillance law has failed to protect these groups shows just how broken the system is. Next year, MPs will vote on a new surveillance law, the Investigatory Powers Bill, which is due to be published in draft form in the next few weeks. This may attempt to offer additional legal protection to lawyers, journalists and parliamentarians. The question is whether these provisions would be realistic given what we know about the capabilities of GCHQ. If data is being collected and analysed in bulk, how can GCHQ and the police guarantee that they have excluded these groups? GCHQ themselves argued before the IPT that excluding politicians from mass surveillance isn’t feasible. If we want to protect privileged communications, we need to protect everyone's communications from indiscriminate surveillance.
Human rights judgments at the CJEU have made it clear that surveillance measures have to be targeted to a specific, necessary purpose in order to be proportionate: collection of data cannot be indiscriminate. Their judgments require robust, independent authorisation to access collected data, and for stored data to remain within the control of EU law. Without this, UK surveillance is open to abuse and could chill political activity and free speech.
MPs will discuss the implications of the IPT ruling for the Wilson Doctrine in an emergency debate on Monday 19 October. We hope that when the draft Investigatory Powers Bill is published they will do the right thing and fight for surveillance legislation that protects everyone’s right to privacy. In the meantime, we are ready to help them protect their communications so that they can communicate with us, their constituents, securely.