MR JUSTICE BURTON
Approved Judgment
Caroline Lucas MP & Ors v Security Service & Ors
all save the promise at some stage to notify the House of any change in general
policy.
ii)
In any event it is plainly necessary, before there can be any expectation
(legitimate or otherwise), that such statement (or policy) will have continuing
effect. It is manifest that it could not be expected that the policy would remain.
It could be abrogated (or changed) at any time, and without any publication at
any time in the foreseeable future. It would be impossible to know whether
there had been an abrogation or change, and the promise to report at some
unforeseeable time of a Prime Minister’s own choosing was an unenforceable
obligation, if ever there was one, even without the superimposition of the
restriction upon the Court’s jurisdiction enunciated in
R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin).
iii)
The (unlikely) alleged legitimate expectation of the parliamentarians to whom
the statement was made would have to be that it would, and in due course did,
oust (sub silentio) the effect of legislation which parliamentarians themselves
would pass or had passed. Prior filtering out of parliamentarians’
communications is impracticable, as discussed in paragraph 16 above. The
Doctrine cannot have been intended or understood to impose an obligation
with which it was impossible in practice to comply.
iv)
The statement was made to MPs. It seems plain from what Mr Jaffey described
as the historical genesis that it was for their benefit, as indeed Sir Swinton
Thomas pointed out in stringent terms in paragraphs 49 and 50 of his Report
cited in paragraph 9 above. It seems to us to have had nothing whatever to do
with confidential communications with constituents or whistle blowers. There
was and is no such protection for the benefit of elected Councillors, for MEPs,
for MSPs or for Members of the Welsh or Northern Ireland Assembly.
v)
It is difficult to gainsay what Mitting J in the course of argument encapsulated
as Mr Eadie’s submission, namely that the statement by Mr Wilson was “a
political statement in a political context, encompassing the ambiguity that is
sometimes to be found in political statements”. The statement was in effect “in
the realm of politics, not of the courts”: see Wheeler at paragraph 41. The
“political sensitivity” is emphasised (by emboldening) and repeated in the
Guidance of all three Agencies.
23.
We are satisfied that the Wilson Doctrine is not enforceable in English law by the
Claimants or other MPs or peers by way of legitimate expectation.
24.
The Code gave some implicit protection, and the Draft Code more expressly, in
respect of the confidential communications between MPs and constituents to which
Mr Jaffey referred. Each Guidance gives a great deal of protection, as set out at length
in paragraph 11 above. As there set out, these protections were not disclosed prior to
these proceedings, and we emphasise this as an important aspect of the advantages
that can be gained by litigating in this Tribunal – witness the substantial disclosures
made by the Respondents in the course of Liberty/Privacy, and in Belhadj [2015]
UKIPTrib 13_132-H. The fact is that even without such disclosure, claimants, such as
the Claimants here, could have brought a claim before this Tribunal