MR JUSTICE BURTON
Approved Judgment
Caroline Lucas MP & Ors v Security Service & Ors
Guidance referred to above, which were intended to put into effect the spirit of the
Wilson Doctrine) only applies to a s.8(1) warrant, whereby the parliamentarian is
targeted: it has no reference to a s.8(4) warrant at all, unless and until there is a
decision to access/select a parliamentarian’s communications, and a s.16(3) certificate
is sought for such purpose.
15.
A number of disputed issues arose in relation to the consideration of the Wilson
Doctrine:
i)
Targeted or incidental/collateral
Mr Wilson’s statement was plainly in the context of whether MPs’ telephones
were being tapped (and in the context of whether or not they were part of or
communicating with the tightly knit group) i.e. directly targeted. Mr Jaffey
accepted that this was indeed the “historical genesis” of the statement, but
submitted that its effect is not so limited. The thrust of his submissions about
the Wilson Doctrine was directed to the confidentiality of communications
between parliamentarians and those wishing to communicate with them,
whether constituents or (for example) whistleblowers pursuant to the
Employment Rights Act 1996 s.43(f), whereby MPs are listed as potential
recipients of a protected disclosure.
ii)
Absolute effect?
Mr Bowers in particular submitted that the Doctrine is absolute. Thus there can
be no targeted interception of parliamentarians at all, and no communication
with parliamentarians obtained pursuant to any warrant can be accessed.
Indeed he went so far as to accept, and “take it on the chin”, that the
consequence of his submission was that no s.8(4) warrant could be issued if
there was a risk that there might be interception of communications with a
parliamentarian; and given the admittedly very large quantities of
communications which are bound to be swept up pursuant to a s.8(4) warrant,
such risk could on the face of it never be eliminated, thus rendering s.8(4)
incapable of effective operation. Certainly he submitted that there was a ‘duty
of candour’ in making an application for such a warrant, as indeed this
Tribunal has found to be the case in relation to the making of an application for
a warrant under s.93 of the Police Act 1997 (see our judgment in
Chatwani v National Crime Agency [2015] UKIPTrib 15_84_88-CH at
paragraph 15ff), and indeed would be uncontroversial. But on Mr Bowers’
case this duty involves the need on every application for a s.8(4) warrant to
disclose to the Home Secretary the existence of the Wilson Doctrine (a matter
of which she would be bound already to be aware). However even if this were
done, neither he nor Mr Jaffey was able to suggest how in reality the risk of
communications with parliamentarians being caught by the warrant could be
avoided. Mr Jaffey was however not so ‘absolutist’. Primarily because of his
‘abrogation’ theory, to which we shall return, he accepted in terms, rather
similarly to the attitude of Lord King in his question to Baroness Chisholm
recited in paragraph 8 above, that he was not submitting that it was never
appropriate to intercept the communications of parliamentarians, for example
if they were suspected of paedophilia. Mr Eadie on the other hand submits that
the Wilson Doctrine was never more than a policy or a general policy, and