Wilson Doctrine

Baroness May of Maidenhead Excerpts

Monday 19th October 2015 Commons Chamber

[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.

[Chris Bryant]

I said 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.]

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I have gained the impression so far that we are all agreed that parliamentarians are not above the law, and if there is reasonable suspicion of serious criminality or a threat to national security then they should have their communications intercepted. I think we are also all agreed that powers should not be used to intercept parliamentarians’ communications to find the source of whistleblowing leaks or to see what their tactics are going to be when criticising Government errors or whatever it happens to be. Will the Home Secretary get rid of the whole problem by agreeing that she will eventually bring forward a form of the Wilson doctrine in the Bill that she is about to produce? Then the status of the doctrine can be debated properly and clarified, and I think she will find that there is not a very wide range of views about what it should and should not apply to.

[Mrs May]

I am grateful to my right hon. and learned Friend. He sets out exactly why it is important that there is a high threshold for decisions in relation to Members of Parliament, as in relation to certain other categories of individual. As he said, we will be bringing forward the investigatory powers Bill. In response to the hon. Member for Rhondda, it will not simply be introduced and then immediately debated in this House because it will be subject to consideration by a Joint Scrutiny Committee of both Houses of Parliament before it comes to this Chamber and the other Chamber for consideration in the normal way. We will look at the issue of safeguards in relation to the Bill; I can give my right hon. and learned Friend that guarantee.

[Andrew Gwynne (Denton and Reddish) (Lab)]

Following on from the comments of the right hon. and learned Member for Rushcliffe (Mr Clarke), does the Home Secretary view it as desirable to have judicial oversight of any decision to intercept Members of Parliaments’ correspondence and communications?

--- Later in debate ---

[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.

[Tom Pursglove (Corby) (Con)]

As part of the consideration of the Bill, might it be worth thinking about introducing a triple lock that would involve the Home Secretary, a judge and the Speaker of the House of Commons having to sign a warrant in order to try to give greater comfort to Members?

[Mrs May]

My hon. Friend makes an interesting suggestion; he might see the interest that is being shown by Members. One of the three reviews that took place—the Royal United Services Institute review—suggested a hybrid solution with not just Secretary of State authorisation or judicial authorisation but a mixture of the two. As I said, when the draft Bill comes out Members will be able to see what the Government have decided to do in relation to that.

[Mr Bone]

I follow the line that the shadow Leader of the House took. When I heard what the Home Secretary said, my conclusion was that over the years a number of Prime Ministers have authorised the interception of Members’ telephone calls and decided that it was not in the national interest to reveal that, which would keep it completely within the Wilson doctrine. Am I right in thinking that?

[Mrs May]

We never speak about whether a particular interception has taken place; indeed, there is a RIPA requirement in relation to that. Lord Wilson said that if there was a change and it was not compatible with national security to bring that change to the House, then it would not be brought to the House, but if it was compatible with national security to bring it to the House, then it would be.

The Wilson doctrine set out by Lord Wilson of Rievaulx has remained in place, and the Investigatory Powers Tribunal identified it as remaining in place. The tribunal confirmed that it continued to apply in respect of targeted interceptions of parliamentarians’ communications. It said that the agencies must comply with the relevant RIPA codes of practice and its own guidance. That guidance makes it clear that if it were proposed to obtain a warrant to target a parliamentarian’s communications, the Prime Minister must be consulted, exactly as the Wilson doctrine originally set out, and accordingly prime ministerial oversight remains in place.

The judgment also considered interception under section 8(4) of RIPA, which relates to external interception, also called bulk interception. The tribunal found that at the point of collection of such material the Wilson doctrine could not sensibly apply because the material is not in any way examined at that point. However, the judgment confirmed that for the examination of any material that has been collected, the spirit of the Wilson doctrine continues to apply.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I am intrigued by the use of the term “the spirit of the Wilson doctrine”, because we have a very different constitutional architecture now than we had at the point when the doctrine was first promulgated. Will the Home Secretary clarify the position with regard to parliamentarians not in this House or the other place but in the other Parliaments and legislative Assemblies that are now part of the United Kingdom?

[Mrs May]

Yes, I am happy to do that. The position was set out in in this House in 2008 by a former Home Secretary, Jacqui Smith, who said that the doctrine did not apply outside Parliament. The draft interception of communications code of practice says:

“Particular consideration”

must

“be given in cases where the subject…might reasonably assume a high degree of privacy, or where confidential information is involved.”

It refers to Members of Parliament and includes Members of Parliament from the European Parliament and the devolved Administrations. We will be giving further consideration to this matter.

[Mr Carmichael]

Surely if the spirit of the Wilson doctrine is to be observed then it should apply to parliamentarians whether here or in one of the devolved Administrations.

[Mrs May]

As I said, we are giving further consideration to the matter.

[Lady Hermon]

rose—

[Mrs May]

If the hon. Lady will forgive me, I need to make some progress, because this is a time-limited debate and I am sure that a number of Back Benchers wish to speak. She may catch my eye further on in my speech.

I want to turn to the question of legality. Some concern has been expressed about the legal effect of the doctrine, and it is right that these matters should be debated. As I am sure the House is aware, the tribunal found that the Wilson doctrine was a political statement and, as such, has no legal effect. Perhaps that is not surprising because it has not been put into any Act passed by this House. The tribunal was also clear that the security and intelligence agencies must comply with— and, indeed, are bound by—the draft interception code of practice published in February 2015, which I have just referred to, and their own internal policies on the doctrine, which I have just described.

In addition, Members should be clear that there is no absolute exemption when a serious criminal or terrorist is the target of an interception warrant and communicates with his or her Member of Parliament. I am sure the House will appreciate that it cannot be the case that those communicating with parliamentarians should be above the law simply as a result of the act of speaking to a Member of Parliament. If a terrorist or a serious criminal contacts an MP, it cannot be the case that they are considered beyond the scope of investigatory powers; but, of course, in such circumstances additional safeguards will apply. The draft interception code of practice is clear that particular consideration should be given where communications between a Member of Parliament and another person may be involved.

That consideration also applies in other cases where the subject of the interception might reasonably assume a high degree of privacy or where confidential information is involved. That includes where the communication relates to legally privileged material; where confidential journalistic material may be involved; and where interception might involve communications between a medical professional or a minister of religion and an individual relating to the latter’s health or spiritual welfare. The code sets out the additional safeguards that apply in those circumstances, just as it does for MPs’ communication with their constituents.

As I have already indicated, the judgment of the tribunal bears close reading. The Government are, of course, considering it very carefully. As I said in response to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), the Government propose publishing a draft Bill on investigatory powers very shortly and we will be looking at further safeguards in the Bill.

[Lady Hermon]

I am genuinely grateful to the Home Secretary for giving way. Could she clarify a small but interesting point relating to her comment about the devolved institutions? A number of Members from many parties also sat in the Northern Ireland Assembly—it was not popular with the public, but they held a dual mandate—so if the Wilson doctrine did not apply to Members of the Assembly, was that just set aside because they were also MPs? Which prevailed—their membership of the Northern Ireland Assembly or their membership of this House?

[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?

--- Later in debate ---

[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—

[Chris Bryant]

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.

[Mr David Winnick (Walsall North) (Lab)]

What the Home Secretary quoted from Harold Wilson’s response to a question from Tom Driberg was, of course, correct, but he also said, in the same answer:

“I am aware of all the considerations which I had to take into account and I felt that it was right to lay down the policy of no tapping of the telephones of Members of Parliament.”—[Official Report, 17 November 1966; Vol. 736, c. 639.]

Surely the point is that neither he nor successive Prime Ministers—nor, indeed, Ministers in any other Department—have made a statement changing what was said by Lord Wilson.

[Mrs May]

The hon. Gentleman refers to Lord Wilson’s statement, from which I correctly quoted with regard to changes.

The three reviews represent a substantial independent review of the frameworks and oversight governing the use of investigatory powers. As the three reports make clear, the use of investigatory powers by the police and the security and intelligence agencies is absolutely vital for national security, in the fight against crime, and if we are to protect the people of this country from harm.

In addition to those reports, I today welcome the fact that the Investigatory Powers Tribunal found no suggestion of improper activity by our security and intelligence agencies. I am pleased to say, once again, that an independent tribunal has declared their activity lawful, and I am grateful for this opportunity to put on record our gratitude to the men and women who, necessarily out of the limelight, do so much to keep the people of this country safe.

The Wilson doctrine recognises the special nature of parliamentary communications and affords parliamentarians important protections. However, as I have said, it can never be the case that MPs can consider themselves above the law. That is a position I hope the whole House can well understand. It is right and proper that we are discussing these issues today, and I look forward to hearing the remaining contributions to this debate.

--- Later in debate ---

[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.

[Mrs May]

I am grateful to the hon. and learned Lady for giving me an opportunity to restate what I actually said earlier in response to a comment by the hon. Member for Rhondda (Chris Bryant). We are committed to and will shortly bring forward a draft investigatory powers Bill, which will be available for scrutiny by a Joint Committee of both Houses of Parliament. The expectation is that it will report sometime in the new year, with a view to our introducing the Bill for its passage through Parliament. The aim is to make it a carry-over Bill, with a deadline of December 2016.

[Joanna Cherry]

I am very grateful to the Home Secretary for confirming that. I fully understand the concerns of those who were Members of the previous Parliament. If things were to be done in such a manner again, there would clearly be an enormous public outcry.