Chris Bryant
Main Page: Chris Bryant (Labour - Rhondda and Ogmore)Department Debates - View all Chris Bryant's debates with the Home Office
(8 years, 9 months ago)
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Chris Bryant (Rhondda) (Lab)
I beg to move,
That this House has considered the operation of the Wilson Doctrine.
Let me start by paying tribute to all those who have kept up sustained questioning on this topic: my hon. Friend the Member for West Bromwich East (Mr Watson), the right hon. Member for Haltemprice and Howden (Mr Davis), my hon. Friend the Member for Walsall North (Mr Winnick), the hon. Member for Wellingborough (Mr Bone) and, most importantly, the hon. Member for Brighton, Pavilion (Caroline Lucas), whose court case has brought so much new information to light. They have done the whole House and the country an invaluable service.
Until last Wednesday, it was thought that the Wilson doctrine was still in force. MPs and Members of the Lords—[Interruption.] I hear the Home Secretary saying that the doctrine is still in force. Well, we look forward to hearing her argument on that later on.
MPs and Members of the Lords, as well as those who communicated with them as whistleblowers, constituents and members of the wider public, thought that parliamentarians’ communications were not, would not and could not be tampered with or intercepted, and that they could rely on a guarantee from the Government that that was so. That is because the doctrine was originally laid out in unambiguous terms on 17 November 1966 when Harold Wilson, the then Prime Minister, told the House that there was to be
“no tapping of the telephones of hon. Members.”—[Official Report, 17 November 1966; Vol. 736, c. 634.]
That was our decision and that was our policy. Five days later, the Lord Privy Seal, Lord Longford, announced that the policy also applied to their lordships’ House.
Despite changes of Government and advances in technology, the policy has enjoyed remarkably consistent declarations of support from Harold Wilson’s successors. It was reasserted by Mrs Thatcher, who said in a written answer on 6 February 1980 that
“the policy remains as stated by the right hon. Gentleman.”—[Official Report, 6 February 1980; Vol. 978, c. 245W.]
The right hon. Gentleman to whom she referred was Harold Wilson.
The policy was reasserted by Tony Blair in the same terms on 30 October 1997. On 4 December that year, he said that the policy
“applies in relation to telephone interception and to the use of electronic surveillance by any of the three security and intelligence agencies.”—[Official Report, 4 December 1997; Vol. 302, c. 321.]
On 21 January 2002, he clarified:
“The policy extends to all forms of warranted interception of communications.”—[Official Report, 21 January 2002; Vol. 378, c. 589W.]
Like Wilson, Blair made it clear that he was acting on consideration. When Sir Swinton Thomas, the then interception of communications commissioner, advised him against maintaining the Wilson doctrine in 2006, Mr Blair told the House in a written ministerial statement, after consultation in Cabinet:
“I have considered Sir Swinton’s advice very seriously…I have decided that the Wilson Doctrine should be maintained.”—[Official Report, 30 March 2006; Vol. 444, c. 96WS.]
The doctrine was also reasserted by Gordon Brown on 12 September 2007. As late as 15 July 2014, the Home Secretary stated that
“obviously the Wilson doctrine applies to parliamentarians”,
as if nothing had changed—exactly as she has done just now.
I give this history merely to point to the absolute nature of the Wilson doctrine, the categorical nature in which it has been stated to this House, and the consistency with which it has been supported, at least in public, by successive Governments, despite changing security threats and changing technology. Even after the introduction of the Regulation of Investigatory Powers Act 2000, Governments repeatedly made it clear that the Wilson doctrine remained in place—until last Wednesday, when the Investigatory Powers Tribunal revealed that a completely different regime is now in operation under this Home Secretary. From the evidence given to the tribunal, it is clear that the Wilson doctrine has been altered beyond recognition without Parliament being told and that the Wilson doctrine is, to all intents and purposes, defunct.
Harold Wilson joked that his postbag suggested that
“a very high proportion of the electorate generally are under the delusion that their telephones are being tapped. This delusion spreads to hon. Members and I should say that I used to suffer from it myself at one time.”—[Official Report, 17 November 1966; Vol. 736, c. 636.]
He, of course, was joking, but as one who knows for certain that his phone was tapped by The News of the World, I say to the Government, “Do not take us for fools. We in this House are not naive. Be open and honest with the House and with the public.”
Last year, the former police officer Peter Francis said that he had seen old security files on Jack Straw, Peter Hain, Joan Ruddock, Ken Livingstone and my hon. Friends the Members for Bolsover (Mr Skinner) and for Islington North (Jeremy Corbyn), my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) and my hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott). The Government tried to silence Peter Francis then, but it now seems that his revelations were probably just the tip of the iceberg.
Most worryingly, last week’s IPT ruling included the partial disclosure of the Government’s official guidance to the three security agencies, which includes a lengthy piece on the Wilson doctrine. The official guidance states categorically: first, that
“it is not, and has never been, Government policy that Parliamentarians’ communications may not be the subject of interception”;
secondly, that the Wilson doctrine does not apply to requests for communications data relating to parliamentarians, nor to the communications of a Member of the European Parliament or of a devolved Administration; thirdly, that parliamentarians are not exempt from bulk interceptions of communications under section 8(4) of RIPA and that any such material that relates to parliamentarians can be interrogated within MI5 and can be disclosed to an outside body; fourthly, that the Wilson doctrine protects only
“the communications of Parliamentarians in the performance of their Parliamentary and constituency duties without fear that their communications are being targeted other than exceptionally where there is a compelling reason for doing so”;
and, fifthly, that the Home Secretary can, having consulted the agencies and the Prime Minister, via the Cabinet Secretary, issue a warrant for the deliberate targeting and interception of parliamentarians’ communications.
That blatantly flies in the face of successive Prime Ministers’ statements to this House. Why would the Government need a separate warrant process for the interception of MPs’ communications if they were still abiding by the Wilson doctrine that MPs’ communications should not, could not and would not be intercepted? How can it be right that the process depends on three highly subjective judgments: first, about what constitute parliamentary and constituency duties, which is a notoriously difficult matter in determining parliamentary privilege; secondly, about what constitutes a sufficiently significant exception; and, thirdly, about what would count as a sufficiently compelling reason? How can it be right that under the Home Secretary’s new dispensation all those judgments are made solely by the Home Secretary, with one politician deciding on the targeting of another politician?
One other element of the Wilson doctrine was that the Prime Minister, “on his own initiative”—those were the then Prime Minister’s words—would notify Parliament of any change to the doctrine. No such statement has been volunteered by this Prime Minister, yet the tribunal makes it very clear that the doctrine has been changed. It states that
“changes in the Doctrine…have resulted in its operation as now described by Mrs May”.
Those words are “changes in the doctrine”. It adds:
“It is clear to us that the Wilson Doctrine as now constituted is as explained by Mrs May”
and goes on to point out that the Wilson doctrine is not in operation.
Mr Peter Bone (Wellingborough) (Con)
I am grateful to the shadow Leader of the House for his explanation. We hear about changes, but could those changes have been made a very long time ago and not just by this Government?
Chris Bryant
Of course, the hon. Gentleman is absolutely right. It is perfectly possible that changes have been made previously, but we cannot judge that. All we can judge is the decision of the IPT, which has been able to review substantially more evidence than this House would ever be able to review and concluded that “changes in the Doctrine” have resulted in its operation as it is now. I suspect that it would be impossible for us ever to know whether changes were made prior to this Government taking office, but we certainly know that the doctrine as previously espoused by every Prime Minister since Wilson is not that which is in operation under the present Home Secretary. In other words, the Wilson doctrine has no legal effect. It is no longer in force. It is no more than a self-denying ordinance that could easily be rescinded and has already been ignored, all without notifying Parliament.
It is clear that the situation is unsatisfactory and I believe that it is time that the Government were straight with the House, so let me ask the Home Secretary some simple questions. What did she mean when she said that the Wilson doctrine “obviously” applies to parliamentarians? Will she now finally admit that the Wilson doctrine is no longer? Will she tell us when she resolved to change the Wilson doctrine? Was there any discussion of these changes at Cabinet, as notified in the IPT judgment? Will she tell us how often warrants have been issued for the targeted interception of parliamentarians’ communications? Has she issued such warrants herself, and did she have any direct correspondence with the Prime Minister about this?
Let me be clear that I am not calling for individual warrants or interceptions to be identified. It is a long-standing policy of both parties of government that we will not comment on individual applications for interception. Indeed, it is an offence under RIPA to reveal that information. Neither do we want the operational security of ongoing investigations to be undermined, but we need to know the truth about whether parliamentarians have been spied on, and on what authority that happened.
Let me end by laying out the parameters for a possible new Wilson doctrine. First, there may be situations when it is necessary for a parliamentarian’s communications to be intercepted in the interests of securing the nation and preventing serious criminality. MPs cannot ever be above the law, but our democracy cannot function properly without the freedom of MPs to communicate with their constituents, whistleblowers, or the wider public without fear of interception. Just as, in the interests of a free press and a sound justice system, journalists and lawyers are granted enhanced protection from warranted surveillance, the legal presumption should be that parliamentarians are not to be targeted, nor their metadata interrogated, without good cause. That means that, as the Anderson report of the investigatory powers review, “A Question of Trust”, concluded, a judge, not a politician, should make the decision on a warrant. It means that the bar for granting a warrant should be high. Agencies should be required to show due cause and specific suspicion of serious criminality.
Mr Grieve
Perhaps I might intervene briefly in my position as chairman of the Intelligence and Security Committee. The hon. Gentleman will be aware that the Committee takes a close interest in privacy and security, and published a report in March. We will continue to take a close interest in these matters, particularly when the Home Office publishes the draft investigatory powers Bill. I would like to assure him that when we do so, we will look at the terms of heightened protection for certain categories of profession, such as lawyers, journalists and doctors. I expect that the Committee will consider whether additional protection should be afforded to MPs’ communications in the light what is in the draft Bill and this debate.
Chris Bryant
That was a helpful intervention. In the official guidance, due consideration is given to lawyers in regard to privileged material. Due regard, as provided for in the European convention on human rights, is given to journalists and the protection of their sources. The guidance includes doctors, but it also refers to ministers of religion, and I have some anxiety about the direction we may be taking. There is a perfectly legitimate debate to be had about what separate categories there might be. I am glad that the Committee will look at precisely how MPs—and, I presume, other parliamentarians —will be treated in the draft Bill, which we will need plenty of time to consider. Last year, we had one day in the House to consider some of the most important matters of personal freedom and liberty, which was wholly inappropriate. The clock is ticking on the High Court ruling, which the right hon. Member for Haltemprice and Howden won earlier this year, so I hope that the Government will move speedily with their draft Bill.
Mr David Davis (Haltemprice and Howden) (Con)
The shadow Leader of the House is telegraphing that the Opposition will support an amendment to the upcoming legislation to provide that protection of privilege. He should be aware that the revelations on the Wilson doctrine were preceded by serious breaches of the legal privilege protection, and—this has changed in the past decade, because I spoke to the previous Home Secretary about the matter—that intercepted communications between the legal representative and the suspect, as it were, are now recorded and given to lawyers who may prosecute that suspect. That is a serious breach of what is known as equality of arms in natural justice.
Chris Bryant
The right hon. Gentleman is correct. He does not need to intercept this communication; I am not only telegraphing, but semaphoring and using every other means of communicating to the House, that there should be a proper debate about the several categories of people that might benefit, in the interests of national security and a wider democratic interest, from a specific provision in law.
There is a separate debate to be had about whether all warrants, as Anderson suggests, should go through a judicial process anyway. In particular, the right hon. Gentleman is right that the European convention on human rights makes specific provision for legal privilege so that lawyers are able to guarantee a fair and proper hearing for a defendant, but that has been breached in the past. Moreover, if we want to guarantee a free press, there must be provisions for journalists.
We cannot have a proper debate, however, unless draft legislation is produced in sufficient time for the House to be able to consider all the issues in the round before the process of tabling amendments begins. I very much hope that the Home Secretary will come forward early and not leave things to the very last minute, as she did last year.
Secondly, it is time that we abandoned our reliance on the doctrine in favour of statute law. Apparent ambiguities in the Wilson doctrine need to be clarified. A sensible course needs to be drawn that guarantees the independence of Parliament, but ensures our national security. We argue that this can be done only through legislation and we stand ready to work with the Home Secretary on this. As I said, she has to come back by the end of March with a new Bill to replace the Data Retention and Investigatory Powers Act 2014, given the High Court ruling, but I earnestly hope that she will introduce new draft legislation in the forthcoming weeks.
Thirdly, it is our contention that the new legislation should apply to all parliamentarians: Members of the House of Commons; Members of the House of Lords, although not necessarily all peers; Members of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly; and UK Members of the European Parliament, although obviously not all Members of the European Parliament.
Lady Hermon (North Down) (Ind)
Will the shadow Leader of the House clarify whether he includes in that list Members of the House who do not take their seats—the absentee Sinn Fein MPs from Northern Ireland? Does he expect the new legislative exemption to apply to them?
Chris Bryant
There is a legitimate debate to be had about how that should operate. I am not arguing that any MP should be above the law or that there should be a blanket ban on any interception ever of the communications of Members of Parliament. I am arguing that in a new era we need a rational approach that involves judicial oversight, rather than political oversight, of warrants to make sure that the country is defended, but with the rights of constituents who approach a Member of Parliament protected, too. It is perfectly easy to draw that distinction. If a Member of Parliament is engaged in criminality, they should face the full force of the law—they should not be able to evade it. I hope that that clarifies the matter for the hon. Lady.
I believe that parliamentarians had a legitimate expectation that the doctrine provided an absolute guarantee. It has been stated and restated, and iterated and reiterated in this House without qualification. I note that the Government’s lawyer argued at the tribunal that the original statement of the doctrine was ambiguous because it was
“a political statement in a political context”.
I do not suppose that all of us think a political statement is of necessity ambiguous, but I am not sure how much less ambiguous a statement Harold Wilson could have made. He expressly stated that he had considered the issue; he admitted that there were opposing views; he referred to a previous report from Privy Counsellors that had recommended a different course of action; and he said that he had changed the policy and that if he were to change it again, he would tell the House. He left himself remarkably little wriggle room, and each succeeding Prime Minister relied on exactly the same formulation.
There will be those who think that the Government should be able to intercept MPs’ communications at will, saying that if we have nothing to hide, we have nothing to fear. However. I urge Conservative Members who think like that to consider two different courses of action that this country has taken in the past. In the first world war, the rule was that MPs’ correspondence could not be intercepted, even from the front. Thanks to that rule, the uncensored letters of Major Harold Cawley MP from Gallipoli to his father, who was a Member of the House of Lords, led to the Dardanelles commission that enabled the world to know the truth, which in turn led to many thousands of lives being saved. Without that provision, there would have been no means of our knowing the truth of what happened in Gallipoli.
By contrast, in the late 1930s, the Chamberlain Government tapped the phones of many of the Conservative MPs who were campaigning for an end to Chamberlain’s policy of appeasement, including Churchill and Eden’s friends and allies. Three of them died in the second world war and have their shields up on the wall. Fortunately, they were brave souls and refused to be intimidated by such practices in the 1930s.
The truth is that the security of this country has always been better served when the power of the Executive, especially the secret power of the Executive, is curbed and kept under check by Parliament. That requires openness and transparency from the Government. I am therefore asking the Home Secretary to do two simple things: first, to come back to the House with a proposal for putting a new doctrine with independent judicial approval into law; and secondly, to reveal whether, when and how often parliamentarians’ communications have been targeted and intercepted under warrant.
The Secretary of State for the Home Department (Mrs Theresa May)
I recognise that there has been much lively interest from Members of this House on the matter of the Wilson doctrine, and I welcome the debate and congratulate the hon. Member for Rhondda (Chris Bryant) on securing it.
It is right that the House should be debating this important issue, touching as it does on the ability of hon. Members to do their duty as Members of Parliament, the need to protect civil liberties and, just as important, the need to protect national security and to keep our constituents safe from harm. As the hon. Gentleman set out, and as the House is aware, the doctrine refers to the general policy outlined on 17 November 1966 in this House by the then Prime Minister, Harold Wilson. The policy has become known as the Wilson doctrine.
It is important to quote exactly what Lord Wilson of Rievaulx, as he was to become, stated. In the opening section of his speech, the hon. Member for Rhondda (Chris Bryant) quoted only the beginning of the statement. Harold Wilson said
“that I should give this instruction that there was to be no tapping of the telephones of Members of Parliament. That was our decision and that is our policy. 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.”—[Official Report, 17 November 1966; Vol. 736, c. 639.]
Since that time successive Prime Ministers have been asked questions in this House in relation to the Wilson doctrine, and successive Prime Ministers have confirmed that the doctrine continues to apply. That position remains unchanged, as the Prime Minister himself has confirmed in this House on a number of occasions.
Although it is clear that the Wilson doctrine continues to apply, I understand the significant interest of the House following the judgment given last week by the Investigatory Powers Tribunal in the case brought by the hon. Member for Brighton, Pavilion (Caroline Lucas), her noble Friend, Baroness Jones of Moulsecoomb, and a former Member of this House, George Galloway. I hope it will be helpful if I set out for the benefit of the House the Government’s position in relation to that judgment. Indeed, I believe there have been a number of misconceptions about the judgment that the Investigatory Powers Tribunal has made and I welcome the opportunity to set the record straight.
Let me begin by saying that it is important to note that the Investigatory Powers Tribunal found against the claimants in all respects. It agreed with the Government’s interpretation of the Wilson doctrine. The position therefore remains unchanged and—I stress this—the protection for MPs’ communications which the doctrine offers remains unchanged. However, it seems that there has been an element of confusion about what the Wilson doctrine actually means. On that, let me say first that it cannot be the case that MPs can never be the subject of interception. Members of this House are not above the law or beyond the scope of investigatory powers. I hope that the whole House will understand this important point. From the nods from a sedentary position, I understand that hon. Members accept that.
Mrs May
I am grateful to the hon. Gentleman for reminding us of that, but he also interpreted the Wilson doctrine as meaning that there would never be any interception of Members of Parliaments’ communications. That was not what the Wilson doctrine said, and it has not been the position. Indeed, last week’s judgment from the IPT quoted a statement that I made last year in response to an intervention from the current deputy Leader of the Opposition, the hon. Member for West Bromwich East (Mr Watson). It might be helpful if, for the benefit of the House, I repeat what I said:
“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”.—[Official Report, 15 July 2014; Vol. 584, c. 713.]
Mrs May
As the hon. Gentleman knows full well, all three reviews of investigatory powers that have taken place came out with a different solution on the oversight and decisions authorisation process for warrants. This is still under consideration, but when the draft Bill is published he will be able to see what the Government have decided.
Chris Bryant
At the beginning of her speech, the Home Secretary chastised me for not reading out the whole of Harold Wilson’s comments and read out the lines where he continued that
“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.”—[Official Report, 17 November 1966; Vol. 736, c. 639.]
She seemed to be suggesting that there has been a change but she does not want to tell us about it because it is not compatible with national security. Is that really what she is saying?
Mrs May
The point I am making is about the interpretation of the Wilson doctrine that the hon. Gentleman set out at the beginning of his speech—that is, that there absolutely would not be, and never could be, any interception of communications of Members of Parliament. That is not the correct interpretation of the Wilson doctrine, as the statement from Lord Wilson of Rievaulx makes very clear.
Mrs May
The hon. Lady has identified a conundrum, which perhaps makes it all the more significant that we look at the issue in due course.
I reiterate that the protection offered by the doctrine remains in force and nothing in the Investigatory Powers Tribunal ruling changes that position. These are serious matters that touch on the wider debate about the right balance between privacy and national security.
Chris Bryant
I am terribly sorry to be so irritating to the Home Secretary, but she said that the protection still applies to parliamentarians. Precisely what is the protection afforded to parliamentarians by the Wilson doctrine?
Mrs May
The hon. Gentleman himself made reference to the Wilson doctrine and I have read out what Lord Wilson said. I am perfectly happy to do so again. He said that
“I should give this instruction that there was to be no tapping of the telephones of Members of Parliament. That was our decision and that is our policy. 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.”—[Official Report, 17 November 1966; Vol. 736, c. 639.]
I have also alluded to other safeguards as a result of the change—
Mrs May
Yes, I am going to use the word “change”. The legislative framework in which these matters are dealt with has changed over the years—more than once, I suspect, but most recently in 2000, with the introduction of RIPA, which contained a number of safeguards in relation to these matters. As I have indicated, and as the IPT repeated, the draft code, which was published in February 2015, makes very clear that particular care has to be taken if it is proposed that certain communications of certain categories of people should be intercepted.
These matters touch on the wider debate about the balance between privacy and national security, and the first duty of a Government is to protect their citizens. I have repeatedly stated my determination to ensure that the police and security agencies have the powers, support and capabilities they need to keep us safe.
In recent years, however, we have seen many wild and inaccurate allegations about the extent of surveillance carried out by the agencies, the legality of the intelligence agencies’ actions and the effectiveness of the oversight of their actions. Recently, three independent reviews have considered the investigatory powers used by the police and security agencies.
In March, the Intelligence and Security Committee published its “Privacy and Security” report, which set out a comprehensive review of the intelligence agencies’ capabilities and the legal and privacy frameworks that govern their use. In June, David Anderson published his report on the operation and regulation of law enforcement and agency investigatory powers, with specific reference to the interception of communications and the separate issue of communications data. This summer, a panel co-ordinated by the Royal United Services Institute and established by the former Deputy Prime Minister, the right hon. Member for Sheffield, Hallam (Mr Clegg), reported on the legality, effectiveness and privacy implications of the UK’s surveillance programmes and assessed how law enforcement and intelligence capability can be maintained in the face of technological change.
Joanna Cherry (Edinburgh South West) (SNP)
May I begin by echoing the tribute paid to those Members who have harried the Government on this issue in recent years? It is important to remind ourselves of why we are having this debate. It is because four recent events have called into question the nature and scope of the Wilson doctrine and, indeed, whether it is in any way meaningful.
First, the submissions made on behalf of the Government to the Investigatory Powers Tribunal in the case brought by the hon. Member for Brighton, Pavilion (Caroline Lucas) appeared to attempt to undermine the Wilson doctrine and to suggest that it was impossible to have it in the modern age, given the existence of the mass trawling of data.
Secondly, the content of last week’s IPT ruling seemed to be to the effect that the Wilson doctrine has no legal force and is just an ambiguous political statement. We are looking for clarification of that ambiguity.
Thirdly—this is very important from the perspective of Scottish MPs and, indeed, MPs from other areas with devolved Administrations—during the IPT hearing, official and hitherto undisclosed guidance that entered the public domain appeared to show that a change of policy regarding the scope of the Wilson doctrine had occurred around about 2014.
Fourthly, we are having this debate because of the Home Secretary’s comments last July, during a debate on the Data Retention and Investigatory Powers Bill, in response to a question from the hon. Member for West Bromwich East (Mr Watson), who is now the deputy leader of the Labour party. It seems to me that many of us agree that that was the first time the Wilson doctrine had been described on the Floor of the House in caveated terms. The right hon. and learned Member for Rushcliffe (Mr Clarke) has rightly drawn to our attention the fact that while we may not all disagree about what the Wilson doctrine should actually say, we need to know what the Government think it says.
In July 2014, the Home Secretary talked about certain rules and protocols that would enable interference with parliamentarians’ communications, but she did not say what they were. Instead of explicitly notifying Parliament that the Wilson doctrine was being in any way redefined, the Home Secretary simply presented her comments as a restatement of the original doctrine. However, as other Members have said, previous Prime Ministers, from Harold Wilson in 1966 to Gordon Brown in 2007, had not stated the doctrine with any such caveats. It is interesting and important to remember that, in paragraph 11 of the judgment, the IPT said it was satisfied that what the Home Secretary was referring to in Parliament in July 2014 was the contents of the official guidance to the security services, which we know had changed.
We are having this debate because it is not acceptable for the Executive unilaterally to abandon or modify such a doctrine without explicitly saying that that is what they are doing and informing Parliament. The removal of the protection given by the doctrine or its modification should not occur without any consultation or democratic scrutiny. The Chamber requires from the Government straight answers on their view of the nature and scope of the Wilson doctrine. There needs to be no more prevaricating. There is considerable discontent across the House. The Government should be in no doubt that there will be growing support for the early-day motion tabled by a cross-party contingent over the coming weeks. They need to take this issue very seriously.
If we look at statements by previous Prime Ministers, we can see that they were unambiguous about the doctrine’s existence, nature and extent, despite the fact that there was sometimes pressure from those who argued against the absolute nature of the doctrine. I believe that such pressure was brought to bear on Tony Blair when he was Prime Minister, and he resisted it. The right hon. Member for Haltemprice and Howden (Mr Davis) has repeatedly reminded us that, in 2011, the present Prime Minister confirmed to the House that the Wilson doctrine was still in force. However, since the Home Secretary’s comments last July, hon. Members, including the right hon. Gentleman, have repeatedly sought clarification from the Prime Minister and the Home Secretary without success.
As the first Scottish MP to speak in this debate, I must address an important matter that emerged from the IPT hearing. It emerged that the most recent versions of the operational notes to the security services seem to exclude Members of the Scottish Parliament, the other devolved Assemblies and the European Parliament from any protection by the Wilson doctrine. That appears to be in contrast to versions of the same operational notes that appeared before 2014. SNP Members cannot imagine what event in 2014 could have provoked such a renewed interest in the activities of Members of the Scottish Parliament.
I hear the Home Secretary’s point about the discrepancy between what Jacqui Smith said when she was Home Secretary and the code of practice. However, we need to know why the code of practice and the official guidance seems, at least during some period before 2014, to have encompassed parliamentarians in the Scottish Parliament, the other devolved Assemblies and the European Parliament, but were subsequently changed. We need the Government to tell us what is going on. When the Wilson doctrine was first enunciated, there was no Scottish Parliament, other devolved Assemblies or European Parliament—[Interruption.] As my hon. Friend the Member for West Dunbartonshire (Martin John Docherty) says, some people might like to return to that position, but that is highly unlikely.
We need to know why there has been a change in practice in relation to other parliamentarians in this country. The First Minister of Scotland wrote to the Prime Minister on 24 July seeking urgent clarification about this apparent change of policy, but two and a half months later she has still not received a reply. Liberty’s legal director James Welch has commented that removing the protection from the Scottish Parliament shows
“an arrogant lack of respect for democratic institutions”.
It might be said that such an arrogant lack of respect for the Scottish Parliament is often felt by SNP Members and Scottish parliamentarians.
I understand the Prime Minister to have said that there is supposed to be a respect agenda in relation to the Scottish Parliament. We need to know why the intelligence services and this Government think the Scottish Parliament is less of a Parliament or less deserving of such protection. Do they think Scots deserve less protection of their privacy when communicating with their MSPs than with their Westminster counterparts? As the hon. Member for Rhondda (Chris Bryant) asked, why should unelected peers of the realm enjoy greater protection than elected Members of the Scottish Parliament? Unlike Members of the House of Lords, Members of the Scottish Parliament and of the other devolved Assemblies have constituents’ interests to serve and protect. If there is a matter of principle about protecting communications between constituents and those who represent them, it should apply to all parliamentarians.
I want to stress that insisting on proper protection for the communications of parliamentarians with others is special pleading not on behalf of parliamentarians, but on behalf of the constituents, whistleblowers and campaigners who communicate with them. When people contact parliamentarians they are often in a vulnerable position—for example, somebody in a big Government body or a big corporate entity who wishes to blow the whistle on some official scandal. Yes, hon. Members of the House, the Scottish Parliament, the other devolved Assemblies and the European Parliament also have to be protected from intimidation or oversight by the Government so that they can help such sometimes vulnerable people and do their jobs without fear or favour.
What is to be done? The draft investigatory powers Bill to be brought forward in the autumn is an opportunity to refine the law to protect civil liberties and set minimum protections and safeguards across the board and, I suggest, for communications between parliamentarians and constituents. I very much welcome the Home Secretary’s statement that she will give further consideration to the position of parliamentarians in the Scottish Parliament and the other devolved Assemblies. I echo the call made by other hon. Members that there must be sufficient time to consider the Bill, but I am reasonably hopeful that we will be given sufficient time, because the Home Secretary has said that a draft Bill will be brought before the House.
Chris Bryant
I urge the hon. and learned Lady not to be too confident. Last time we had to pass such legislation, we had to pass the whole lot in a single day. We had to suspend all the normal processes in the House to take through the Bill in a single day.
Joanna Cherry
I was not in the House at that time, but I watched it on the television. I am aware of that, but I am giving the Home Secretary the benefit of the doubt, because she has indicated that it will be a draft investigatory powers Bill.
Chris Bryant
I can confirm that the deputy leader of the Labour party is perfectly content with the policy that we are arguing for. Indeed, he is the person who got the Home Secretary to confirm for the first time that she had changed the Wilson doctrine.
Mr Davis
I will return to the subject of the debate.
The answer to those journalists, commentators and editors who think that this is about the House getting above itself, or that in some sense it is not important, is simple: we should not tolerate the Government intercepting or interfering in any way with any of our communications—there is one tiny exception that I shall return to—because MPs are the people who are charged with holding the Government to account. We forget this line from time to time in the sort of schoolboy antics that pass for the reporting of Parliament in this day and age, but we are the ones who hold the Government to account. In doing so, we deal with campaigners, journalists, whistleblowers, other MPs and, of course, our constituents. The text of the judgment states that the only protected component is our constituents, and although they are incredibly important, in some ways they are the least salient of the components that we deal with.
The Home Secretary, quite properly, reminds the House of the demands of national security. She is right to do that because 58 people have died owing to terrorism within the United Kingdom since 2000, and the figure is about 90 if we include those in Tunisia and elsewhere. Security is a serious issue, but so are matters that are brought to our attention by whistleblowers. Mid Staffs occurred because whistleblowers were supressed or ignored—the same effect that we get by diluting the Wilson doctrine. How many people died unnecessarily at Mid Staffs? It was 1,200. We must not forget that whistleblowers are incredibly important and they would, or will, be supressed by what is seen as the demise of the Wilson doctrine.
Let us consider the possible cases. A police officer calls an MP about corruption, but he might be intercepted by other police officers. A prisoner calls his MP about ill treatment in prison, but he might be intercepted and recorded by other prison officers. A tax official calls the Chair of the Public Accounts Committee about sweetheart deals on tax with big companies and Parliament being lied to—hon. Members might begin to realise that these are real cases—but that person might have his life destroyed because of activities under RIPA. Imagine an official from the Ministry of Defence telling an MP about the mistreatment of a prisoner by the British Army, or an immigration officer telling a shadow Home Secretary about Government deceiving Parliament—that case led to the arrest of one of our colleagues, my right hon. Friend the Member for Ashford (Damian Green), some time ago. The absence, failure or demise of the Wilson doctrine would undermine or deter all those cases.
The Home Secretary has a difficult task, because technology is changing under our feet and has been doing so for decades. The difficulty today is that the Wilson doctrine that most people believed was in place is not. The idea that all our communications are protected is untrue for a number of reasons. I cannot find the first reference—I think it was Gordon Brown, but it might have been earlier—but one Prime Minister limited such protection to cases with a warrant from a Secretary of State. Before then it was not limited in such terms. Let us understand what a limitation that is. The report on surveillance by David Anderson, the Independent Reviewer of Terrorism Legislation, points out that there are more than 65 different statutory mechanisms for initiating intercepts and other sorts of communication surveillance. Very few of those require a warrant from the Secretary of State. It is a very narrow protection.
Chris Bryant
For the avoidance of doubt, I want to make it absolutely clear that my personal objection is not that MPs’ phones might have been tapped—there might be circumstances in which that is perfectly legitimate in order for Governments to defend national security or prevent serious criminality—but the continued pretence and repeated assertion that their phones have not been tapped.
Mr Bone
I almost agree with the shadow Leader of the House. What I am saying is that I have no objection to the tapping of MPs’ telephones for national security, alongside all the safeguards we have mentioned, but we should be told at least once a year how many times that has occurred. We should know not who is involved, but how often it has occurred so that the House knows what is going on. That, however, is the information that we cannot get, which is why we have to put the Wilson doctrine into law. It expands, of course, into e-mails and all the other forms of communication that are now in place.
Let us have the debate. The shadow Leader of the House seemed to take an assurance from the Home Secretary, but I was not sure whether I was listening to Richard Nixon again. It was not clear to me whether legislation will definitely be brought forward, or if that would be only considered. It is essential that we get clarity about that.
I was very attracted to what my hon. Friend the Member for Corby (Tom Pursglove) said when he talked about a treble lock. If an MP’s phone is to be tapped or another form of their communication is to be intercepted, yes, that should be authorised by the Home Secretary and by a judge, but I think it should also be authorised by whoever is sitting in your Chair, Mr Speaker, as the Speaker should also have a role in this. That triple lock would make the process more difficult because if any of those parties disagreed, the proposed intervention would not happen. We need to debate such issues in detail. We cannot pretend that MPs are not having their communications intercepted when clearly, by the omission of a response from the Government, that is exactly what is happening.
Chris Bryant
I promise you, Mr Speaker, and the Home Secretary, who is already bored by my comments, that I will not speak for long. I am a former curate in the Church of England, so I am accustomed to doctrine being a rather loose concept, but the 38 articles have nothing on the Wilson doctrine. [Interruption.] They were often referred to as the 38 articles, because even though they had to swear allegiance to the 39 articles very few clergy in the Church of England believed in all 39 and clergy often used to leave one of the buttons on their cassock undone just to show that they did not agree with one of the 39 articles. Broadly speaking, that is what the Government have done since 1966; they have been wearing a cassock called the Wilson doctrine but leaving several of the buttons undone.
Excellent contributions have been made in the debate by Scottish National party Members, by the Green party, by colleagues from Northern Ireland, by my fellow Labour Members and by Government Members, but I have sometimes felt as if I have been in an episode of “Through the Looking-Glass” because words have been used in a way that defies their own meaning. It is a bit like when Humpty Dumpty said:
“When I use a word…it means just what I choose it to mean—neither more nor less.”
The truth is that there has been a change; Wilson said Members phones’ would not be tapped. I think we know from this debate that Members’ phones have been tapped, yet successive Prime Ministers and Home Secretaries have sworn blind to this House—they have made written statements and said it time and again in this House—that the Wilson doctrine is fully in place. The truth of the matter is that it is not. I have no objection to the fact that Ministers will, on occasion, have allowed the interception of Members’ communications to have happened, if that is in the interest of national security—no Member of Parliament should be above the law, as everybody has specified—but we should just own up to that fact. If the doctrine is dead, it should be consigned to that place to which all previous doctrines have disappeared when they have been surrendered—to limbo, which itself is a doctrine now surrendered by the Roman Catholic Church.
I say to the Government that I hope that as a result of this debate we can be straightforward in what we say to the public. First and foremost, we should not rely on a doctrine—we should rely on statute law. I hope that the Government will soon introduce legislation which can go to the Joint Committee. I hope that that Committee will be set up as soon as possible so that we can consider all these issues in the round, as they affect whistleblowers, campaigners, those who correspond with MPs and of course constituents. Secondly, there must be greater judicial oversight; it must surely be nonsense that in this country, which prides itself on the rule of law, a politician should be in the position of deciding whether a politician’s communications can be intercepted, and only politicians are in the position of making that judgment. Labour Members believe that a senior judge should be making that decision.
Finally, I come to a point that has been well made by many others: this is not about MPs being a special class of people or seeking special privileges; it is about parliamentarians being able to do the job that they are assigned to by the voters in the country. That should apply not only to Members of this House, but to Members of the other House, Members of the devolved legislatures and Assemblies, and UK Members of the European Parliament. I very much hope that in the next year it will be possible to put the doctrine to bed and have proper statute law to protect our constituents and our ability to hold government to account.
Question put and agreed to.
Resolved,
That this House has considered the operation of the Wilson Doctrine.