MR JUSTICE BURTON
Approved Judgment
Caroline Lucas MP & Ors v Security Service & Ors
“As he said, it is not the case that parliamentarians are
excluded, but certain rules and protocols have to be met if there
is a requirement to use any of these powers against
parliamentarians.”
9.
There was detailed criticism of the Wilson Doctrine by the then Interception of
Communications Commissioner Sir Swinton Thomas in his Report for 2005-6, and it
seems in direct communication between him and the then Prime Minister Mr Blair to
the same effect. In that part of his Report headed “The Wilson Doctrine” he expressed
his view (inter alia) as follows:
“48. The Doctrine may have been defensible when it was first
enunciated in 1966, when there was no legislation governing
interception and there was no independent oversight. In 1966
there was no requirement for a warrant with all the safeguards
that are attached to that operation now.
49. Now, in 2006, the interception of communications is the
primary source of intelligence in relation to serious crime and
terrorism and is strictly regulated. The Doctrine means that
MPs and Peers can engage in serious crime or terrorism
without running the risk of being investigated in the same way
as any other member of the public. In the course of many
meetings I have had with Ministers and Members of
Parliament, it has become clear that many are determined that
that state of affairs should continue.
50. It is fundamental to the Constitution of this country that noone is above the law or is seen to be above the law. But in this
instance, MPs and Peers are anything but equal with the rest of
the citizens of this country and are above the law.
...
57. In my view the Doctrine flies in the face of our Constitution
and is wrong. I do not think that it provides MPs with
additional protection. I think in fact that it is damaging to
them.”
Mr Blair however reported to Parliament (HC Deb 30 March 2006 Vol 444, Cols 956):
“I have considered Sir Swinton’s advice very seriously . . . I
have decided that the Wilson Doctrine should be maintained.”
10.
There are relevant passages in the Codes, to which we are satisfied the Home
Secretary was referring: the Interception of Communications Code of Practice
pursuant to Section 71 of RIPA in force until this year (“the Code”) does not make
express reference to communications between parliamentarians and their constituents
as being confidential, in that such communications are not listed among the examples
given, but they are particularised in the new draft Code which has been de facto in