MR JUSTICE BURTON
Approved Judgment
7.
Caroline Lucas MP & Ors v Security Service & Ors
There has been a number of repetitions or clarifications of the Wilson Doctrine since,
including a repetition by Mrs Thatcher (HC Deb 06 February 1980 Vol 978, Cols
244-5), and in particular:
i)
Mr Blair (HC Deb 4 December 1997 Vol 302, Col 321) stated that the “policy .
. . applies in relation to telephone interception and to the use of electronic
surveillance by any of the three Security and Intelligence Agencies”: on 21
January 2002, HC Deb Vol 378, Col 589, he clarified that “the policy extends
to all forms of warranted interception of communications”.
ii)
This was further clarified so far as necessary by Mr Gordon Brown (HC Deb
12 September 2007 Vol 463, Col 2013): “the Wilson Doctrine applies to all
forms of interception that are subject to authorisation by Secretary of State
warrant”.
iii)
The most recent statements have been in the House of Commons by the Home
Secretary Mrs Theresa May (HC Deb 15 July 2014 Vol 583, Col 713) and in
the House of Lords by Baroness Chisholm of Owlpen (HL Deb 22 July 2015
Vol 764, Cols 1107-9. As to the former, Mrs May was speaking in a debate on
the Data Retention and Investigatory Powers Bill (“DRIPA”), and she pointed
out that “the House will know that interception can only take place when a
warrant has been authorised by a Secretary of State”. In answer to a question
which followed from Mr Tom Watson about the Wilson Doctrine and its
application to parliamentarians, Mrs May replied:
“Obviously, the Wilson Doctrine applies to
parliamentarians. It does not absolutely exclude the use
of these powers against parliamentarians, but it sets
certain requirements for those powers to be used in
relation to a parliamentarian. It is not the case that
parliamentarians are excluded and nobody else in the
country is, but there is a certain set of rules and protocols
that have to be met if there is a requirement to use any of
these powers against a parliamentarian.”
8.
Mr Jaffey submitted that this answer only applied to DRIPA, because this was the
particular topic of the debate. But it is quite apparent that it related to the Wilson
Doctrine generally, both because she was dealing with that part of DRIPA which
related to interception, but also because the answer was so obviously a general one,
and in particular referred to “a certain set of rules and protocols that have to be met if
there is a requirement to use any of these powers [i.e. powers of interception] against
a parliamentarian”. It is plain that the reference to such rules and protocols is to the
relevant Interception of Communication Codes of Practice, and the relevant Official
Guidance for the Security and Intelligence Agencies, to which we shall turn below. In
any event the matter is put beyond doubt by the separate and subsequent response by
Baroness Chisholm in the course of the debate on (and headed up as) the “Wilson
Doctrine”, when she said, in answer to a question from Lord King of Bridgwater, who
had opined that “it would be quite wrong for parliamentarians to be totally excluded
at all times” from susceptibility to interception by GCHQ, that: