MR JUSTICE BURTON
Approved Judgment
Caroline Lucas MP & Ors v Security Service & Ors
namely the grant of s.8(4) warrants, which Parliament, those very parliamentarians,
itself approved.
17.
We do not accept that the Wilson Doctrine was ever absolute. The policy or general
policy of which Mr Wilson spoke was one of not tapping the telephones of Members
of Parliament. It seems unlikely to us that such policy, particularly once RIPA was
passed by Parliament, with its statutory justification for s.8 warrants by reference to
the necessity for the interests of national security or the purpose of preventing or
detecting serious crime etc (s.5(3)), was intended to rule out any tapping of such
telephones or other similar direct surveillance and certainly not any incidental
interception. It is difficult to see how there could be an absolute policy which would
rule out interception of any communications with parliamentarians, as opposed to a
policy relating to those involving confidential communications with constituents etc.
Mr Jaffey himself asserted (Day 1/140) that in respect of that category an adequate
system of safeguards could be found. It is to be noted that the applications before us
are by parliamentarians, contending that the absolute protection applies to all their
communications, and not by, for example, civil liberties groups addressing the
protection of such communications.
18.
We have already referred above to Mr Jaffey’s suggested concept of abrogation.
There is in our judgment no room for this. What he describes as abrogation is either a
recognition that the general policy is not absolute or is or amounts to a change in that
policy: the no doubt studied ambiguity in the enunciation of the Doctrine would allow
for either. Mr Wilson provided, as Mr Jaffey accepts, for the event of “any
development of a kind requiring a change in the general policy”. This means that
there could be such a change, and one which did not need to be disclosed to
Parliament at any foreseeable time. There is no basis in our judgment for the
proposition that this would (only) relate to one-off decisions and for what Mr Jaffey
described as abrogation for a particular purpose or a temporary abrogation. The
change would or could be one that would permit, by way of change of the general
policy, the interception of communications of parliamentarians. When and insofar as
there was such a change, then that change could continue, no doubt operating only in
exceptional circumstances and where necessary and proportionate, as indeed
adumbrated in the recent Guidance. There is no reason to conclude that the Prime
Minister would be required to be involved on every occasion once there had been such
a change, subject only to the need for a Prime Minister to reveal or announce such
change to Parliament at some stage in the future. There is no basis therefore for the
role for the Prime Minister which Mr Jaffey postulates by reference to his need to
abrogate the policy on each occasion, nor for a case that without his involvement on
each occasion there would, as Mr Bowers submits, be a violation of the Doctrine. If
the policy has changed, it is impossible to conclude that the Prime Minister does not
know this, not least by virtue of the publication of Mrs May’s statement as recorded in
Hansard, to be followed no doubt by some statement from this or a future Prime
Minister at some stage in the future to the same effect.
19.
The Doctrine cannot in any event prevent submissions being made by the Agencies to
the relevant Secretary of State for the issue of a s.8(1) or (4) warrant in relation to a
parliamentarian. There can be no lawful interception without a Secretary of State’s
warrant. Accordingly, the critical stage at which the Wilson Doctrine would bite is at
that stage, not earlier.