MR JUSTICE BURTON
Approved Judgment
Caroline Lucas MP & Ors v Security Service & Ors
to assert a belief that their communications were being intercepted, and the Tribunal
could have considered, as indeed it will be considering in this case, whether there has
been a failure by any of the Agencies to comply with their own Guidance. It would
seem to us sensible that the three Agencies should cooperate in producing one single
Guidance applicable to all three Agencies.
S.8(1)
25.
It is clear to us that the Wilson Doctrine as now constituted is as explained by Mrs
May in July 2014 - whether or not there is a need for a further statement by the Prime
Minister in Parliament to emphasise the changes and comply with Mr Wilson’s
(unenforceable) promise. There was in the Code, and in any event is expressly set out
in the Draft Code, so far as confidential communications between MPs and their
constituents are concerned, a requirement for disclosure of material facts on an
application for a s.8(1) warrant, if there were an application by an agency targeting a
parliamentarian, or for a warrant which would inevitably lead to interception of a
parliamentarian’s communications, e.g. if the target shared a home with the
parliamentarian. Such an application will only occur in exceptional circumstances,
but, as Mr Jaffey himself accepted there may be amongst parliamentarians what was
described in the hearing as “bad apples”. The Guidance for each of the Agencies sets
out provision for such exceptional circumstances with care and provides for the need
for consultation with the Prime Minister (absent in some earlier versions of the
Guidance). In this connection there was a further issue raised by Mr Jaffey in his reply
which it seemed to us had not been previously considered, namely as to whether there
might within the provisions of s.8(1) of RIPA be a possibility for a subsequent
addition of a parliamentarian’s name and contact details to the schedule to a s.8(1)
warrant once it had been issued, but it seemed to us clear that if that could occur (and
it was far from clear to us that it could), the provisions of the Guidance would
inevitably be followed, and if appropriate they could be clarified.
S.8(4)
26.
We are satisfied that the Wilson Doctrine does not in any event apply to an
application for the grant of a s.8(4) warrant. As described in paragraphs 10 and 13
above, it is not likely that at the grant stage there would or could be consideration of
the possibility of interception of a Parliamentarian’s communications, although
paragraph 4.19 of the Draft Code is there as a reminder. However, as the Guidance of
the Agencies makes clear, as and when the selection of material to be accessed arises,
particularly in the light of s.16(3), what Mr Eadie described as the spirit of the Wilson
Doctrine will arise.
Articles 8 and 10 of the ECHR
27.
The ECtHR and this Tribunal have already been satisfied that the s.8(1) (Kennedy
[2011] 52 EHRR 4) and 8(4) (Liberty/Privacy) regimes are in generic terms
compliant with the requirements of Articles 8 and 10. The question is raised by the
Claimants in this case as to whether anything further and specific is required by the
ECHR to deal with interception of communications by parliamentarians. As to this it
is common ground that: