attempt to surmount these problems and the problems relating to
European Community and Human Rights law, but I have not seen any
system proposed which would successfully overcome these problems.
The problems are very great and should not be understated.
viii. In conclusion, in my judgment, the introduction of intercept material
in the criminal process in this country (other countries have different
systems) would put at risk the effectiveness of the agencies on whom
we rely in the fight against terrorists and serious criminals, might well
result in less convictions and more acquittals and, most important of
all, the ability of the intelligence and law enforcement agencies to
detect and disrupt terrorism and serious crime and so protect the public
of this country would be severely handicapped.
The Wilson Doctrine
47. On 17 November 1966, Mr Harold Wilson the then Prime Minister, made a
statement in the House of Commons that there would be no tapping of the
telephones of Members of Parliament but if there was any development of a kind
which a change in the general policy, he would, at such moment as seemed
compatible with the security of the country, on his own initiative, make a
statement in the House of Commons. Subsequently, it has been confirmed that the
Doctrine applies to all forms of communication, to Members of the House of
Lords, and to electronic eavesdropping by the intelligence agencies. The Doctrine
has remained in force ever since, and on 30 March 2006, the Prime Minister, Mr
Tony Blair, said in answer to a question that the Wilson Doctrine would be
maintained. It is an issue which falls squarely within the responsibilities placed
on the Interception of Communications Commissioner by Parliament by Section
57 of the Regulation of Investigatory Powers Act 2000.
48. The Doctrine may have been defensible when it was first enunciated in 1966
when there was no legislation governing interception and there was no
independent oversight. In 1966 there was no requirement for a warrant with all
the safeguards that are attached to that operation now.
49. Now, in 2006, the interception of communications is the primary source of
intelligence in relation to serious crime and terrorism and is strictly regulated. The
Doctrine means that MPs and Peers can engage in serious crime or terrorism
without running the risk of being investigated in the same way as any other
member of the public. In the course of many meetings I have had with Ministers
and Members of Parliament, it has become clear that many are determined that
that state of affairs should continue.
50. 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.
51. Some MPs may fear that the situation now is the same as it was in 1966
when it was at least theoretically possible for the Executive to intercept
communications for its own purpose but it is not, for the following reasons –
i.
For there to be interception, there must be a Warrant in place, signed
by the Secretary of State authorising the interception.
ii.
The grounds for doing so are very limited by Section 5(3) of the Act.
They are essentially National Security (including terrorism) and the
prevention or detection of serious crime.
iii.
There is oversight by the Commissioner to prevent wrongful use, and
I have made it clear that the Commissioner would personally ensure
that there was no improper interception of the communications of any
public figure.
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