GCHQ allowed to spy on politicians, says tribunal

News by Max Metzger

After a legal challenge by Caroline Lucas MP and Baroness Jones a tribunal has made the "Wilson Doctrine" not legally binding.

A tribunal has ruled that GCHQ, the UK's signals intelligence organization, may legally spy on MPs. 

In a case brought to the Investigatory Powers Tribunal (IPT) by Caroline Lucas, The Green Party's only serving MP and Baroness Jones, a Green Party peer, the IPT ruled that GCHQ may spy on members of the Lords and the Commons, much as they could for any citizen.

The Wilson Doctrine which was ruled by the IPT as having “no legal effect” refers to a comment made by former Prime Minister Harold Wilson in 1966 when he said that the communications of MPs and Peers would not be intercepted and that he would tell them if they do.   

The lawyers acting on behalf of Lucas and Baroness Jones claimed that the surveillance of MPs and Peers breached not only the Wilson Doctrine but Parliamentary privilege too. The ruling concluded that, “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.”

This is not entirely a surprising development. Documents leaked by Snowden showed that GCHQ was confident that the IPT would rule in its favour in most cases. 

Last year, Home Secretary Theresa May told the Commons that while The Wilson Doctrine applied, members were not exempt from state surveillance: “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.”

Earlier this year, James Eadie QC, went even further and said that the Wilson Doctrine was not legally binding and politicians would not be exempt from the long tentacles of GCHQ surveillance.

The ruling did say there are differences between the “incidental” interception that GCHQ collects on all citizens in the UK, and the “targeted” interception that might be carried out on politicians if a warrant were granted.

The Wilson Doctrine has had a curious life. It began with a contradictory statement made in 1966 by Prime Minister Harold Wilson who promised that the communications of Peers and MPs would not be intercepted.

Though, he added the caveat that, “But if there was any development of a kind which required a change in the general policy, I would, at such moment as seemed compatible with the security of the country, on my own initiative make a statement in the House about it.”

This contradicted a Privy Council statement, called the Birkett report nine years earlier which stated that interception of communication was a lawful statute. The 1957 report claimed that "a Member of Parliament is not to be distinguished from an ordinary member of the public, so far as the interception of communications is concerned, unless the communications were held to be in connection with a Parliamentary proceeding".

Caroline Lucas said at the opening of her legal challenge to the IPT that, "The blanket surveillance of the communications of parliamentarians could have a deeply chilling effect on our relationship with the public."

Along with the introduction of the Regulation of Investigatory Powers Act, which allows law enforcement bodies to intercept the communications of journalists if they are believed to have information those bodies need, this signals a problem for whistleblowers informing on government behaviour.

After the ruling was handed down, Lucas published a post on her blog, damning the IPT's decision and saying that “this judgement is a body blow for parliamentary democracy”, adding that, “Parliamentarians must be a trusted source for whistleblowers and those wishing to challenge the actions of the Government."

Rosa Curling from Leigh Day, the lawyers acting on behalf of Jones and Lucas, said, “Democratically elected MPs, who have for the past half century have relied upon this illusion of trust from the security services, can now be spied on legitimately by the security services.”

She added that “Members of the public can no longer be assured that their correspondence with their elected representatives, either to raise complaints about government policies or whistle-blow and expose wrongdoings of the government, will not be monitored or snooped on by the government and its agencies.”

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