MR JUSTICE BURTON
Approved Judgment
Caroline Lucas MP & Ors v Security Service & Ors
that Mrs May was not spelling out anything new when she articulated the
Wilson Doctrine in July 2014 in the way she did.
iii)
Change/abrogation
This was Mr Jaffey’s route away from ‘absolutism’. He submits that:
iv)
(a)
the policy of no interception or surveillance of parliamentarians may
be abrogated, perhaps temporarily or perhaps in part:
(b)
if and when it was so abrogated, the Prime Minister, would, as
indicated by Mr Wilson, inform Parliament at a time which “seemed
compatible with the security of the country”, a time which could well
be some years in the future. This, he submitted, would permit the
interception of the communications of individual parliamentarians,
but each such abrogation would be an individual or one-off
abrogation.
The Role of the Prime Minister
Mr Jaffey formulates his case in respect of abrogation by submitting that each
and any such abrogation must be by the Prime Minister, and thus that each and
any authorisation of interception of a parliamentarian’s communications must
be with the consent or acquiescence of the Prime Minister. Thus it is that in his
submissions he accepted in terms (Day 1/81) that interception of a
parliamentarian’s communications would not breach the Wilson Doctrine if the
Secretary of State has sought the Prime Minister’s acquiescence. Mr Bowers
submitted (Day 1/178) that if a warrant was used by the Secretary of State
without the permission of the Prime Minister that would not mean an
abrogation of the policy but a violation.
16.
We are wholly unpersuaded by Mr Bowers’ submission that the Wilson Doctrine
applies to every warrant, whether s.8(1) or 8(4), at the stage of application and grant,
and that no warrant where there might be interception of a parliamentarian’s
communications as a result can thus be granted. The suggestion was made that any
such risk could be avoided by adding to any s.8(4) warrant a provision so as to
exclude from interception the telephone numbers and email addresses (private or
official) of all parliamentarians (if obtainable). In the light of the arguments, to which
we shall return, that communications with parliamentarians should be regarded
analogously with communications subject to legal and professional privilege (LPP),
we noted that the procedure in respect of the protection of LPP communications is (as
provided in the Code and the Draft Code, whether satisfactory or otherwise) itself
dealt with at the stage of access, selection and reading of communications by the
Agencies: and this does not involve, for example, the exclusion at the stage of
application for the s. 8(4) warrant of all email addresses or telephone numbers of all
solicitors and barristers (and not just in England and Wales). We are entirely satisfied
that the Wilson Doctrine, which commenced in respect of the tapping of MP’s
telephones, was not intended to extend, and could not in practice extend, to prohibit
the interception, as part of a very large quantity of communications, of
communications by parliamentarians which were not targeted by the warrant applied
for. Unless such were the case it would in fact render impossible the very procedure,