MR JUSTICE BURTON
Approved Judgment
20.
Caroline Lucas MP & Ors v Security Service & Ors
The changes in the Doctrine, which have resulted in its operation as now described by
Mrs May, were permitted and foreseen by the Doctrine itself. If the Doctrine was ever
an ‘absolute’ one, it is no longer, but is operated in line with the Draft Code and the
Guidance of the Agencies. As Home Secretary, and responsible for the issue of
warrants, and in that capacity a Respondent to this claim, she is in the best position to
recognise and explain how the Doctrine is operated.
Is the Wilson Doctrine enforceable at law?
21.
If the above analysis is correct, as we conceive it to be, then the case put forward that
there can be no interception of parliamentarians’ communications (or none such
without the Prime Minister’s express agreement) falls in any event. But what is the
status of the Wilson Doctrine: is it enforceable at law? Those acting for Mr Galloway
sought the view of the Speaker of the House of Commons, and the Speaker’s secretary
responded by letter of 4 February 2015, which he specifically requested should be
drawn to the Tribunal’s attention and which stated that the Speaker’s
Counsel had advised the Speaker materially as follows:
“My immediate reaction is that the “Wilson Doctrine” . . . is an
undertaking given by the Prime Minister as to Executive
forbearance in the practice of interception. It was given at a
time when interception was not subject to statutory
requirements for a warrant (these were introduced following
the ECHR case of Malone v. United Kingdom).
It may well be that Members are treated differently from
members of the public in relation to the exercise of powers
under Regulation of Investigatory Powers Act 2000, but this is
because the Executive undertakes to treat them differently, and
there is, of course, no legal obligation to intercept-just a
warrant regime which must be followed if it is to be
undertaken. The difference in treatment is not a matter of
[parliamentary] privilege, or even of law, whether common law
or statute.”
None of the parties based their case upon what is there stated, one way or the other,
but the Speaker, who can be expected to represent the interests of MPs, provides no
support for the Claimants’ proposition.
22.
The Claimants submit that the Doctrine is enforceable by way of the concept of
legitimate expectation:
i)
The requirement for the establishment of such concept is, as made clear by
Bingham LJ (as he then was) in R v Inland Revenue Commissioners, Ex p
MFK Underwriting Agents Ltd [1990] 1 WLR 1545 at 1569 (inter alia) that
“it is necessary that the ruling or statement relied upon should be clear,
unambiguous and devoid of relevant qualification”. Enough has been said in
the course of our conclusions above to make it clear that at the very least the
statement by Mr Wilson was ambiguous and had relevant qualification, both as
to the nature and the effect of the policy which he was enunciating. There is in
effect, as we have pointed out in paragraph 18 above, a studied ambiguity as to