MR JUSTICE BURTON
Approved Judgment
Caroline Lucas MP & Ors v Security Service & Ors
i)
There is protection for freedom of speech by parliamentarians within
Parliament – hence the need for absolute parliamentary immunity was
concluded to override the applicant’s Articles 8 and 6 rights in A v UK (App
35 373/97 judgment 17 March 2003) (see also Castells v Spain 14 EHRR
445).
ii)
There is no case in the ECtHR, or founded upon the ECHR, which supports the
superimposition of specific protections relating to communications by
parliamentarians, outside Parliament, whether with constituents or otherwise.
The UK does have a system, described in this judgment, consisting of the Wilson
Doctrine as explained by Mrs May, i.e. by reference to the Draft Code and the
Guidance of the Agencies. It is also common ground that unless these rules were
required by the provisions of Articles 8 and 10, the ECHR requirements of
foreseeability or accessibility do not prevent reliance upon or reference to such
Guidance, prior to the publication of it in these proceedings. Mr Jaffey rightly
conceded in argument that if the Rules in fact operated are not required by the ECHR,
then lack of foreseeability or accessibility (prior to these proceedings) is of no
relevance.
28.
Since it is accepted that there is no authority that the ECHR requires additional
protection for communications with parliamentarians, the question is whether this
Tribunal could or should now establish such authority. Mr Eadie has pointed to the
words of caution expressed by Lord Brown and Lord Carnwath in minority opinions
in (respectively) Rabone v Pennine Care NHS Trust [2012] 2 AC at para 112 and
Kennedy v The Charity Commissioners [2015] 1 AC 455 at 211-214, as to the role
of the English Courts in interpreting the requirements of the ECHR and the ‘direction
of travel’ of the ECtHR in cases where there is no direct authority. But Mr Jaffey
submits that we should spell out such requirements by analogy with other areas
requiring additional protection, namely LPP and journalistic communications.
29.
The first question to be asked is: what are the communications for which such
additional protection is required? A court enunciating (and for the first time) such
requirements must obviously be in a position to give adequate identification of what
they are:
i)
What group is to be identified? Is it to be all “elected representatives of the
people” (Castells at 476)? It is difficult to see why it should be limited to
members of the House of Commons and the House of Lords, and not (as
discussed above) so as to include elected regional or local Councillors or
elected Members of other Assemblies (or the European Parliament). Of course
the wider the category the greater the effect on the effective operation of the
interception system, certainly if any absolute protection were to be required for
such communications, as opposed to the need for caution in relation to any
interception.
ii)
The next question is whether such protection is to be in respect of all
communications by such elected representatives. At present the Guidance of
the three Agencies does give some protection to all communications by
parliamentarians, but only in respect of the care to be taken in assessing and
identifying them, and only in respect of the procedure to be followed, not by