MR JUSTICE BURTON
Approved Judgment
Caroline Lucas MP & Ors v Security Service & Ors
also consult Director before any warrant application is submitted to FCO.
Further, the Secretary of State will also need to consult the Prime Minister, via
the Cabinet Secretary, before any final decision is taken.
A similar process of authorisation will be followed where there is a deliberate
intention to select for examination the communications of a Parliamentarian
intercepted under the 8(4) regime. In any case of this nature you must consult
Mission Policy, who will initiate the required procedure.”
12.
The parties have agreed a list of preliminary legal issues, a copy of which is attached
to this judgment, but in essence they can be summarised as follows:
i)
What does the Wilson Doctrine mean?
ii)
What is its continuing effect in respect of parliamentary communications?
iii)
What status does it (or its continuing effect) have in English law?
iv)
Does the system relating to interception of parliamentary communications
comply with Articles 8/10 of the ECHR?
The purpose and effect of the Wilson Doctrine
13.
This Tribunal has described the warrants under RIPA at some length in previous
judgments, but in particular we refer to Liberty v GCHQ (No.1) 2014 UKIPTrib
13_77-H (“Liberty/Privacy”). In general terms s.8(1) is what can be described as a
‘targeted warrant’, addressed to an identified person or persons or organisation or
organisations. A s.8(4) warrant is directed at the communications or class of
communications identified in the warrant and can be described as an ‘untargeted’
warrant or a ‘strategic’ warrant (by reference to the similar warrant in Weber and
Saravia v Germany [2008] 46 EHRR SE5) or as a ‘certificated’ warrant. In
paragraph 70 of Liberty/Privacy this Tribunal approved the description of the s.8(4)
regime as one which in principle “permits a substantial volume of communications to
be intercepted, and then requires the application of a selection process to identify a
smaller volume of intercepted material that can actually be examined by persons, with
a prohibition on the remainder being so examined”. For the purposes of this issue, the
context of s.8(1) will relate to whether a parliamentarian can be targeted by a s.8(1)
warrant, and whether his or her communications can be intercepted collaterally or
incidentally in the course of the targeting of someone else. As for s.8(4) it is apparent
that there is no targeting at the time of grant of the warrant. Large quantities of
communications will then be gathered, from which some may be selected to be
accessed and read, and it is only at the stage of selection and examination that there
may be accessing of a parliamentarian’s communications. Material intercepted under
a s.8(4) warrant cannot be accessed if it relates to an individual who is known to be
likely to be present in the British Isles (such as a parliamentarian) without a certificate
being obtained under s.16(3) from the Secretary of State.
14.
Mr Jaffey and Mr Bowers both submit that the Wilson Doctrine applies to the
obtaining of both a s.8(1) and a s.8(4) warrant, and to the communications of
parliamentarians whether targeted or collaterally or incidentally obtained. Mr Eadie
submits that the Wilson Doctrine (particularly by reference to the Codes and