MR JUSTICE BURTON
Approved Judgment
Caroline Lucas MP & Ors v Security Service & Ors
Liberty/Privacy, provides, particularly having regard to the well-established
proposition as to the reduced foreseeability required in the field of national security, a
sufficient and adequate system for ECHR purposes, and one which does not require
the Wilson Doctrine to underlie it. Unlike journalists’ and lawyers’ communications,
there is no ECHR authority for enhanced protection for parliamentarians. There are
very good reasons, as Sir Swinton Thomas pointed out, for parliamentarians not being
treated differently from other citizens. The s.5 RIPA criteria and the approved
interception regimes, including other statutory provisions for the respective Agencies,
impose and signal a high threshold for interception. It is not necessary for this
Tribunal to make new law. Moreover any attempt to do so would entail inventing a
new code to define the types of communications covered and where lines are to be
drawn. The Wilson Doctrine, as now enunciated and put into effect, highlights a need
for caution and circumspection in respect of parliamentarians’ communications. But
such caution and circumspection will be called for in respect of many other types of
confidential and sensitive private communications, which come to be considered
under the interception regimes.
Answers to the preliminary issues
33.
34.
The Tribunal accordingly answers the preliminary issues attached to this judgment as
follows:
i)
The Wilson Doctrine does not apply to s.8(4) warrants at the stage of issue.
ii)
It applies to targeted, but not incidental, interception of parliamentarians’
communications, both in respect of s.8(1) warrants at date of issue and in
respect of s.8(4) warrants at the date of accessing/selecting such
communications.
iii)
The Wilson Doctrine does not operate so as to create a substantive legitimate
expectation.
iv)
The Wilson Doctrine has no legal effect, but in practice the Agencies must
comply with the Draft Code and with their own Guidance.
v)
The regime for the interception of parliamentarians’ communications is in
accordance with the law under Article 8(2) and prescribed by law under
Article 10(2), in particular by reference to s.5(3) of RIPA.
MPs’ communications with their constituents and others are protected, like those of
every other person, by the statutory regime established by Part 1 of RIPA 2000. The
critical control is the requirement for a Secretary of State’s warrant, which can only
be issued if the requirements of Section 5 are satisfied. That regime is sufficient to
protect such communications and nothing further is required by the ECHR.