(8 years, 6 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
Chris Bryant (Rhondda) (Lab)
I beg to move,
That this House has considered the operation of the Wilson Doctrine.
Let me start by paying tribute to all those who have kept up sustained questioning on this topic: my hon. Friend the Member for West Bromwich East (Mr Watson), the right hon. Member for Haltemprice and Howden (Mr Davis), my hon. Friend the Member for Walsall North (Mr Winnick), the hon. Member for Wellingborough (Mr Bone) and, most importantly, the hon. Member for Brighton, Pavilion (Caroline Lucas), whose court case has brought so much new information to light. They have done the whole House and the country an invaluable service.
Until last Wednesday, it was thought that the Wilson doctrine was still in force. MPs and Members of the Lords—[Interruption.] I hear the Home Secretary saying that the doctrine is still in force. Well, we look forward to hearing her argument on that later on.
MPs and Members of the Lords, as well as those who communicated with them as whistleblowers, constituents and members of the wider public, thought that parliamentarians’ communications were not, would not and could not be tampered with or intercepted, and that they could rely on a guarantee from the Government that that was so. That is because the doctrine was originally laid out in unambiguous terms on 17 November 1966 when Harold Wilson, the then Prime Minister, told the House that there was to be
“no tapping of the telephones of hon. Members.”—[Official Report, 17 November 1966; Vol. 736, c. 634.]
That was our decision and that was our policy. Five days later, the Lord Privy Seal, Lord Longford, announced that the policy also applied to their lordships’ House.
Despite changes of Government and advances in technology, the policy has enjoyed remarkably consistent declarations of support from Harold Wilson’s successors. It was reasserted by Mrs Thatcher, who said in a written answer on 6 February 1980 that
“the policy remains as stated by the right hon. Gentleman.”—[Official Report, 6 February 1980; Vol. 978, c. 245W.]
The right hon. Gentleman to whom she referred was Harold Wilson.
The policy was reasserted by Tony Blair in the same terms on 30 October 1997. On 4 December that year, he said 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.”—[Official Report, 4 December 1997; Vol. 302, c. 321.]
On 21 January 2002, he clarified:
“The policy extends to all forms of warranted interception of communications.”—[Official Report, 21 January 2002; Vol. 378, c. 589W.]
Like Wilson, Blair made it clear that he was acting on consideration. When Sir Swinton Thomas, the then interception of communications commissioner, advised him against maintaining the Wilson doctrine in 2006, Mr Blair told the House in a written ministerial statement, after consultation in Cabinet:
“I have considered Sir Swinton’s advice very seriously…I have decided that the Wilson Doctrine should be maintained.”—[Official Report, 30 March 2006; Vol. 444, c. 96WS.]
The doctrine was also reasserted by Gordon Brown on 12 September 2007. As late as 15 July 2014, the Home Secretary stated that
“obviously the Wilson doctrine applies to parliamentarians”,
as if nothing had changed—exactly as she has done just now.
I give this history merely to point to the absolute nature of the Wilson doctrine, the categorical nature in which it has been stated to this House, and the consistency with which it has been supported, at least in public, by successive Governments, despite changing security threats and changing technology. Even after the introduction of the Regulation of Investigatory Powers Act 2000, Governments repeatedly made it clear that the Wilson doctrine remained in place—until last Wednesday, when the Investigatory Powers Tribunal revealed that a completely different regime is now in operation under this Home Secretary. From the evidence given to the tribunal, it is clear that the Wilson doctrine has been altered beyond recognition without Parliament being told and that the Wilson doctrine is, to all intents and purposes, defunct.
Harold Wilson joked that his postbag suggested that
“a very high proportion of the electorate generally are under the delusion that their telephones are being tapped. This delusion spreads to hon. Members and I should say that I used to suffer from it myself at one time.”—[Official Report, 17 November 1966; Vol. 736, c. 636.]
He, of course, was joking, but as one who knows for certain that his phone was tapped by The News of the World, I say to the Government, “Do not take us for fools. We in this House are not naive. Be open and honest with the House and with the public.”
Last year, the former police officer Peter Francis said that he had seen old security files on Jack Straw, Peter Hain, Joan Ruddock, Ken Livingstone and my hon. Friends the Members for Bolsover (Mr Skinner) and for Islington North (Jeremy Corbyn), my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) and my hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott). The Government tried to silence Peter Francis then, but it now seems that his revelations were probably just the tip of the iceberg.
Most worryingly, last week’s IPT ruling included the partial disclosure of the Government’s official guidance to the three security agencies, which includes a lengthy piece on the Wilson doctrine. The official guidance states categorically: first, that
“it is not, and has never been, Government policy that Parliamentarians’ communications may not be the subject of interception”;
secondly, that the Wilson doctrine does not apply to requests for communications data relating to parliamentarians, nor to the communications of a Member of the European Parliament or of a devolved Administration; thirdly, that parliamentarians are not exempt from bulk interceptions of communications under section 8(4) of RIPA and that any such material that relates to parliamentarians can be interrogated within MI5 and can be disclosed to an outside body; fourthly, that the Wilson doctrine protects only
“the communications of Parliamentarians in the performance of their Parliamentary and constituency duties without fear that their communications are being targeted other than exceptionally where there is a compelling reason for doing so”;
and, fifthly, that the Home Secretary can, having consulted the agencies and the Prime Minister, via the Cabinet Secretary, issue a warrant for the deliberate targeting and interception of parliamentarians’ communications.
That blatantly flies in the face of successive Prime Ministers’ statements to this House. Why would the Government need a separate warrant process for the interception of MPs’ communications if they were still abiding by the Wilson doctrine that MPs’ communications should not, could not and would not be intercepted? How can it be right that the process depends on three highly subjective judgments: first, about what constitute parliamentary and constituency duties, which is a notoriously difficult matter in determining parliamentary privilege; secondly, about what constitutes a sufficiently significant exception; and, thirdly, about what would count as a sufficiently compelling reason? How can it be right that under the Home Secretary’s new dispensation all those judgments are made solely by the Home Secretary, with one politician deciding on the targeting of another politician?
One other element of the Wilson doctrine was that the Prime Minister, “on his own initiative”—those were the then Prime Minister’s words—would notify Parliament of any change to the doctrine. No such statement has been volunteered by this Prime Minister, yet the tribunal makes it very clear that the doctrine has been changed. It states that
“changes in the Doctrine…have resulted in its operation as now described by Mrs May”.
Those words are “changes in the doctrine”. It adds:
“It is clear to us that the Wilson Doctrine as now constituted is as explained by Mrs May”
and goes on to point out that the Wilson doctrine is not in operation.
Mr Peter Bone (Wellingborough) (Con)
I am grateful to the shadow Leader of the House for his explanation. We hear about changes, but could those changes have been made a very long time ago and not just by this Government?
Chris Bryant
Of course, the hon. Gentleman is absolutely right. It is perfectly possible that changes have been made previously, but we cannot judge that. All we can judge is the decision of the IPT, which has been able to review substantially more evidence than this House would ever be able to review and concluded that “changes in the Doctrine” have resulted in its operation as it is now. I suspect that it would be impossible for us ever to know whether changes were made prior to this Government taking office, but we certainly know that the doctrine as previously espoused by every Prime Minister since Wilson is not that which is in operation under the present Home Secretary. In other words, the Wilson doctrine has no legal effect. It is no longer in force. It is no more than a self-denying ordinance that could easily be rescinded and has already been ignored, all without notifying Parliament.
It is clear that the situation is unsatisfactory and I believe that it is time that the Government were straight with the House, so let me ask the Home Secretary some simple questions. What did she mean when she said that the Wilson doctrine “obviously” applies to parliamentarians? Will she now finally admit that the Wilson doctrine is no longer? Will she tell us when she resolved to change the Wilson doctrine? Was there any discussion of these changes at Cabinet, as notified in the IPT judgment? Will she tell us how often warrants have been issued for the targeted interception of parliamentarians’ communications? Has she issued such warrants herself, and did she have any direct correspondence with the Prime Minister about this?
Let me be clear that I am not calling for individual warrants or interceptions to be identified. It is a long-standing policy of both parties of government that we will not comment on individual applications for interception. Indeed, it is an offence under RIPA to reveal that information. Neither do we want the operational security of ongoing investigations to be undermined, but we need to know the truth about whether parliamentarians have been spied on, and on what authority that happened.
Let me end by laying out the parameters for a possible new Wilson doctrine. First, there may be situations when it is necessary for a parliamentarian’s communications to be intercepted in the interests of securing the nation and preventing serious criminality. MPs cannot ever be above the law, but our democracy cannot function properly without the freedom of MPs to communicate with their constituents, whistleblowers, or the wider public without fear of interception. Just as, in the interests of a free press and a sound justice system, journalists and lawyers are granted enhanced protection from warranted surveillance, the legal presumption should be that parliamentarians are not to be targeted, nor their metadata interrogated, without good cause. That means that, as the Anderson report of the investigatory powers review, “A Question of Trust”, concluded, a judge, not a politician, should make the decision on a warrant. It means that the bar for granting a warrant should be high. Agencies should be required to show due cause and specific suspicion of serious criminality.
Mr Grieve
Perhaps I might intervene briefly in my position as chairman of the Intelligence and Security Committee. The hon. Gentleman will be aware that the Committee takes a close interest in privacy and security, and published a report in March. We will continue to take a close interest in these matters, particularly when the Home Office publishes the draft investigatory powers Bill. I would like to assure him that when we do so, we will look at the terms of heightened protection for certain categories of profession, such as lawyers, journalists and doctors. I expect that the Committee will consider whether additional protection should be afforded to MPs’ communications in the light what is in the draft Bill and this debate.
Chris Bryant
That was a helpful intervention. In the official guidance, due consideration is given to lawyers in regard to privileged material. Due regard, as provided for in the European convention on human rights, is given to journalists and the protection of their sources. The guidance includes doctors, but it also refers to ministers of religion, and I have some anxiety about the direction we may be taking. There is a perfectly legitimate debate to be had about what separate categories there might be. I am glad that the Committee will look at precisely how MPs—and, I presume, other parliamentarians —will be treated in the draft Bill, which we will need plenty of time to consider. Last year, we had one day in the House to consider some of the most important matters of personal freedom and liberty, which was wholly inappropriate. The clock is ticking on the High Court ruling, which the right hon. Member for Haltemprice and Howden won earlier this year, so I hope that the Government will move speedily with their draft Bill.
Mr David Davis (Haltemprice and Howden) (Con)
The shadow Leader of the House is telegraphing that the Opposition will support an amendment to the upcoming legislation to provide that protection of privilege. He should be aware that the revelations on the Wilson doctrine were preceded by serious breaches of the legal privilege protection, and—this has changed in the past decade, because I spoke to the previous Home Secretary about the matter—that intercepted communications between the legal representative and the suspect, as it were, are now recorded and given to lawyers who may prosecute that suspect. That is a serious breach of what is known as equality of arms in natural justice.
Chris Bryant
The right hon. Gentleman is correct. He does not need to intercept this communication; I am not only telegraphing, but semaphoring and using every other means of communicating to the House, that there should be a proper debate about the several categories of people that might benefit, in the interests of national security and a wider democratic interest, from a specific provision in law.
There is a separate debate to be had about whether all warrants, as Anderson suggests, should go through a judicial process anyway. In particular, the right hon. Gentleman is right that the European convention on human rights makes specific provision for legal privilege so that lawyers are able to guarantee a fair and proper hearing for a defendant, but that has been breached in the past. Moreover, if we want to guarantee a free press, there must be provisions for journalists.
We cannot have a proper debate, however, unless draft legislation is produced in sufficient time for the House to be able to consider all the issues in the round before the process of tabling amendments begins. I very much hope that the Home Secretary will come forward early and not leave things to the very last minute, as she did last year.
Secondly, it is time that we abandoned our reliance on the doctrine in favour of statute law. Apparent ambiguities in the Wilson doctrine need to be clarified. A sensible course needs to be drawn that guarantees the independence of Parliament, but ensures our national security. We argue that this can be done only through legislation and we stand ready to work with the Home Secretary on this. As I said, she has to come back by the end of March with a new Bill to replace the Data Retention and Investigatory Powers Act 2014, given the High Court ruling, but I earnestly hope that she will introduce new draft legislation in the forthcoming weeks.
Thirdly, it is our contention that the new legislation should apply to all parliamentarians: Members of the House of Commons; Members of the House of Lords, although not necessarily all peers; Members of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly; and UK Members of the European Parliament, although obviously not all Members of the European Parliament.
Lady Hermon (North Down) (Ind)
Will the shadow Leader of the House clarify whether he includes in that list Members of the House who do not take their seats—the absentee Sinn Fein MPs from Northern Ireland? Does he expect the new legislative exemption to apply to them?
Chris Bryant
There is a legitimate debate to be had about how that should operate. I am not arguing that any MP should be above the law or that there should be a blanket ban on any interception ever of the communications of Members of Parliament. I am arguing that in a new era we need a rational approach that involves judicial oversight, rather than political oversight, of warrants to make sure that the country is defended, but with the rights of constituents who approach a Member of Parliament protected, too. It is perfectly easy to draw that distinction. If a Member of Parliament is engaged in criminality, they should face the full force of the law—they should not be able to evade it. I hope that that clarifies the matter for the hon. Lady.
I believe that parliamentarians had a legitimate expectation that the doctrine provided an absolute guarantee. It has been stated and restated, and iterated and reiterated in this House without qualification. I note that the Government’s lawyer argued at the tribunal that the original statement of the doctrine was ambiguous because it was
“a political statement in a political context”.
I do not suppose that all of us think a political statement is of necessity ambiguous, but I am not sure how much less ambiguous a statement Harold Wilson could have made. He expressly stated that he had considered the issue; he admitted that there were opposing views; he referred to a previous report from Privy Counsellors that had recommended a different course of action; and he said that he had changed the policy and that if he were to change it again, he would tell the House. He left himself remarkably little wriggle room, and each succeeding Prime Minister relied on exactly the same formulation.
There will be those who think that the Government should be able to intercept MPs’ communications at will, saying that if we have nothing to hide, we have nothing to fear. However. I urge Conservative Members who think like that to consider two different courses of action that this country has taken in the past. In the first world war, the rule was that MPs’ correspondence could not be intercepted, even from the front. Thanks to that rule, the uncensored letters of Major Harold Cawley MP from Gallipoli to his father, who was a Member of the House of Lords, led to the Dardanelles commission that enabled the world to know the truth, which in turn led to many thousands of lives being saved. Without that provision, there would have been no means of our knowing the truth of what happened in Gallipoli.
By contrast, in the late 1930s, the Chamberlain Government tapped the phones of many of the Conservative MPs who were campaigning for an end to Chamberlain’s policy of appeasement, including Churchill and Eden’s friends and allies. Three of them died in the second world war and have their shields up on the wall. Fortunately, they were brave souls and refused to be intimidated by such practices in the 1930s.
The truth is that the security of this country has always been better served when the power of the Executive, especially the secret power of the Executive, is curbed and kept under check by Parliament. That requires openness and transparency from the Government. I am therefore asking the Home Secretary to do two simple things: first, to come back to the House with a proposal for putting a new doctrine with independent judicial approval into law; and secondly, to reveal whether, when and how often parliamentarians’ communications have been targeted and intercepted under warrant.
The Secretary of State for the Home Department (Mrs Theresa May)
I recognise that there has been much lively interest from Members of this House on the matter of the Wilson doctrine, and I welcome the debate and congratulate the hon. Member for Rhondda (Chris Bryant) on securing it.
It is right that the House should be debating this important issue, touching as it does on the ability of hon. Members to do their duty as Members of Parliament, the need to protect civil liberties and, just as important, the need to protect national security and to keep our constituents safe from harm. As the hon. Gentleman set out, and as the House is aware, the doctrine refers to the general policy outlined on 17 November 1966 in this House by the then Prime Minister, Harold Wilson. The policy has become known as the Wilson doctrine.
It is important to quote exactly what Lord Wilson of Rievaulx, as he was to become, stated. In the opening section of his speech, the hon. Member for Rhondda (Chris Bryant) quoted only the beginning of the statement. Harold Wilson said
“that I should give this instruction that there was to be no tapping of the telephones of Members of Parliament. That was our decision and that is our policy. But if there was any development of a kind which required a change in the general policy, I would, at such moment as seemed compatible with the security of the country, on my own initiative make a statement in the House about it.”—[Official Report, 17 November 1966; Vol. 736, c. 639.]
Since that time successive Prime Ministers have been asked questions in this House in relation to the Wilson doctrine, and successive Prime Ministers have confirmed that the doctrine continues to apply. That position remains unchanged, as the Prime Minister himself has confirmed in this House on a number of occasions.
Although it is clear that the Wilson doctrine continues to apply, I understand the significant interest of the House following the judgment given last week by the Investigatory Powers Tribunal in the case brought by the hon. Member for Brighton, Pavilion (Caroline Lucas), her noble Friend, Baroness Jones of Moulsecoomb, and a former Member of this House, George Galloway. I hope it will be helpful if I set out for the benefit of the House the Government’s position in relation to that judgment. Indeed, I believe there have been a number of misconceptions about the judgment that the Investigatory Powers Tribunal has made and I welcome the opportunity to set the record straight.
Let me begin by saying that it is important to note that the Investigatory Powers Tribunal found against the claimants in all respects. It agreed with the Government’s interpretation of the Wilson doctrine. The position therefore remains unchanged and—I stress this—the protection for MPs’ communications which the doctrine offers remains unchanged. However, it seems that there has been an element of confusion about what the Wilson doctrine actually means. On that, let me say first that it cannot be the case that MPs can never be the subject of interception. Members of this House are not above the law or beyond the scope of investigatory powers. I hope that the whole House will understand this important point. From the nods from a sedentary position, I understand that hon. Members accept that.
Mrs May
I am grateful to the hon. Gentleman for reminding us of that, but he also interpreted the Wilson doctrine as meaning that there would never be any interception of Members of Parliaments’ communications. That was not what the Wilson doctrine said, and it has not been the position. Indeed, last week’s judgment from the IPT quoted a statement that I made last year in response to an intervention from the current deputy Leader of the Opposition, the hon. Member for West Bromwich East (Mr Watson). It might be helpful if, for the benefit of the House, I repeat what I said:
“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”.—[Official Report, 15 July 2014; Vol. 584, c. 713.]
Mr Kenneth Clarke (Rushcliffe) (Con)
I have gained the impression so far that we are all agreed that parliamentarians are not above the law, and if there is reasonable suspicion of serious criminality or a threat to national security then they should have their communications intercepted. I think we are also all agreed that powers should not be used to intercept parliamentarians’ communications to find the source of whistleblowing leaks or to see what their tactics are going to be when criticising Government errors or whatever it happens to be. Will the Home Secretary get rid of the whole problem by agreeing that she will eventually bring forward a form of the Wilson doctrine in the Bill that she is about to produce? Then the status of the doctrine can be debated properly and clarified, and I think she will find that there is not a very wide range of views about what it should and should not apply to.
Mrs May
I am grateful to my right hon. and learned Friend. He sets out exactly why it is important that there is a high threshold for decisions in relation to Members of Parliament, as in relation to certain other categories of individual. As he said, we will be bringing forward the investigatory powers Bill. In response to the hon. Member for Rhondda, it will not simply be introduced and then immediately debated in this House because it will be subject to consideration by a Joint Scrutiny Committee of both Houses of Parliament before it comes to this Chamber and the other Chamber for consideration in the normal way. We will look at the issue of safeguards in relation to the Bill; I can give my right hon. and learned Friend that guarantee.
Andrew Gwynne (Denton and Reddish) (Lab)
Following on from the comments of the right hon. and learned Member for Rushcliffe (Mr Clarke), does the Home Secretary view it as desirable to have judicial oversight of any decision to intercept Members of Parliaments’ correspondence and communications?
Mrs May
As the hon. Gentleman knows full well, all three reviews of investigatory powers that have taken place came out with a different solution on the oversight and decisions authorisation process for warrants. This is still under consideration, but when the draft Bill is published he will be able to see what the Government have decided.
Chris Bryant
At the beginning of her speech, the Home Secretary chastised me for not reading out the whole of Harold Wilson’s comments and read out the lines where he continued that
“if there was any development of a kind which required a change in the general policy, I would, at such moment as seemed compatible with the security of the country, on my own initiative make a statement in the House about it.”—[Official Report, 17 November 1966; Vol. 736, c. 639.]
She seemed to be suggesting that there has been a change but she does not want to tell us about it because it is not compatible with national security. Is that really what she is saying?
Mrs May
The point I am making is about the interpretation of the Wilson doctrine that the hon. Gentleman set out at the beginning of his speech—that is, that there absolutely would not be, and never could be, any interception of communications of Members of Parliament. That is not the correct interpretation of the Wilson doctrine, as the statement from Lord Wilson of Rievaulx makes very clear.
Tom Pursglove (Corby) (Con)
As part of the consideration of the Bill, might it be worth thinking about introducing a triple lock that would involve the Home Secretary, a judge and the Speaker of the House of Commons having to sign a warrant in order to try to give greater comfort to Members?
Mrs May
My hon. Friend makes an interesting suggestion; he might see the interest that is being shown by Members. One of the three reviews that took place—the Royal United Services Institute review—suggested a hybrid solution with not just Secretary of State authorisation or judicial authorisation but a mixture of the two. As I said, when the draft Bill comes out Members will be able to see what the Government have decided to do in relation to that.
Mr Bone
I follow the line that the shadow Leader of the House took. When I heard what the Home Secretary said, my conclusion was that over the years a number of Prime Ministers have authorised the interception of Members’ telephone calls and decided that it was not in the national interest to reveal that, which would keep it completely within the Wilson doctrine. Am I right in thinking that?
Mrs May
We never speak about whether a particular interception has taken place; indeed, there is a RIPA requirement in relation to that. Lord Wilson said that if there was a change and it was not compatible with national security to bring that change to the House, then it would not be brought to the House, but if it was compatible with national security to bring it to the House, then it would be.
The Wilson doctrine set out by Lord Wilson of Rievaulx has remained in place, and the Investigatory Powers Tribunal identified it as remaining in place. The tribunal confirmed that it continued to apply in respect of targeted interceptions of parliamentarians’ communications. It said that the agencies must comply with the relevant RIPA codes of practice and its own guidance. That guidance makes it clear that if it were proposed to obtain a warrant to target a parliamentarian’s communications, the Prime Minister must be consulted, exactly as the Wilson doctrine originally set out, and accordingly prime ministerial oversight remains in place.
The judgment also considered interception under section 8(4) of RIPA, which relates to external interception, also called bulk interception. The tribunal found that at the point of collection of such material the Wilson doctrine could not sensibly apply because the material is not in any way examined at that point. However, the judgment confirmed that for the examination of any material that has been collected, the spirit of the Wilson doctrine continues to apply.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
I am intrigued by the use of the term “the spirit of the Wilson doctrine”, because we have a very different constitutional architecture now than we had at the point when the doctrine was first promulgated. Will the Home Secretary clarify the position with regard to parliamentarians not in this House or the other place but in the other Parliaments and legislative Assemblies that are now part of the United Kingdom?
Mrs May
Yes, I am happy to do that. The position was set out in in this House in 2008 by a former Home Secretary, Jacqui Smith, who said that the doctrine did not apply outside Parliament. The draft interception of communications code of practice says:
“Particular consideration”
must
“be given in cases where the subject…might reasonably assume a high degree of privacy, or where confidential information is involved.”
It refers to Members of Parliament and includes Members of Parliament from the European Parliament and the devolved Administrations. We will be giving further consideration to this matter.
Mr Carmichael
Surely if the spirit of the Wilson doctrine is to be observed then it should apply to parliamentarians whether here or in one of the devolved Administrations.
Mrs May
If the hon. Lady will forgive me, I need to make some progress, because this is a time-limited debate and I am sure that a number of Back Benchers wish to speak. She may catch my eye further on in my speech.
I want to turn to the question of legality. Some concern has been expressed about the legal effect of the doctrine, and it is right that these matters should be debated. As I am sure the House is aware, the tribunal found that the Wilson doctrine was a political statement and, as such, has no legal effect. Perhaps that is not surprising because it has not been put into any Act passed by this House. The tribunal was also clear that the security and intelligence agencies must comply with— and, indeed, are bound by—the draft interception code of practice published in February 2015, which I have just referred to, and their own internal policies on the doctrine, which I have just described.
In addition, Members should be clear that there is no absolute exemption when a serious criminal or terrorist is the target of an interception warrant and communicates with his or her Member of Parliament. I am sure the House will appreciate that it cannot be the case that those communicating with parliamentarians should be above the law simply as a result of the act of speaking to a Member of Parliament. If a terrorist or a serious criminal contacts an MP, it cannot be the case that they are considered beyond the scope of investigatory powers; but, of course, in such circumstances additional safeguards will apply. The draft interception code of practice is clear that particular consideration should be given where communications between a Member of Parliament and another person may be involved.
That consideration also applies in other cases where the subject of the interception might reasonably assume a high degree of privacy or where confidential information is involved. That includes where the communication relates to legally privileged material; where confidential journalistic material may be involved; and where interception might involve communications between a medical professional or a minister of religion and an individual relating to the latter’s health or spiritual welfare. The code sets out the additional safeguards that apply in those circumstances, just as it does for MPs’ communication with their constituents.
As I have already indicated, the judgment of the tribunal bears close reading. The Government are, of course, considering it very carefully. As I said in response to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), the Government propose publishing a draft Bill on investigatory powers very shortly and we will be looking at further safeguards in the Bill.
Lady Hermon
I am genuinely grateful to the Home Secretary for giving way. Could she clarify a small but interesting point relating to her comment about the devolved institutions? A number of Members from many parties also sat in the Northern Ireland Assembly—it was not popular with the public, but they held a dual mandate—so if the Wilson doctrine did not apply to Members of the Assembly, was that just set aside because they were also MPs? Which prevailed—their membership of the Northern Ireland Assembly or their membership of this House?
Mrs May
The hon. Lady has identified a conundrum, which perhaps makes it all the more significant that we look at the issue in due course.
I reiterate that the protection offered by the doctrine remains in force and nothing in the Investigatory Powers Tribunal ruling changes that position. These are serious matters that touch on the wider debate about the right balance between privacy and national security.
Chris Bryant
I am terribly sorry to be so irritating to the Home Secretary, but she said that the protection still applies to parliamentarians. Precisely what is the protection afforded to parliamentarians by the Wilson doctrine?
Mrs May
The hon. Gentleman himself made reference to the Wilson doctrine and I have read out what Lord Wilson said. I am perfectly happy to do so again. He said that
“I should give this instruction that there was to be no tapping of the telephones of Members of Parliament. That was our decision and that is our policy. But if there was any development of a kind which required a change in the general policy, I would, at such moment as seemed compatible with the security of the country, on my own initiative make a statement in the House about it.”—[Official Report, 17 November 1966; Vol. 736, c. 639.]
I have also alluded to other safeguards as a result of the change—
Mrs May
Yes, I am going to use the word “change”. The legislative framework in which these matters are dealt with has changed over the years—more than once, I suspect, but most recently in 2000, with the introduction of RIPA, which contained a number of safeguards in relation to these matters. As I have indicated, and as the IPT repeated, the draft code, which was published in February 2015, makes very clear that particular care has to be taken if it is proposed that certain communications of certain categories of people should be intercepted.
These matters touch on the wider debate about the balance between privacy and national security, and the first duty of a Government is to protect their citizens. I have repeatedly stated my determination to ensure that the police and security agencies have the powers, support and capabilities they need to keep us safe.
In recent years, however, we have seen many wild and inaccurate allegations about the extent of surveillance carried out by the agencies, the legality of the intelligence agencies’ actions and the effectiveness of the oversight of their actions. Recently, three independent reviews have considered the investigatory powers used by the police and security agencies.
In March, the Intelligence and Security Committee published its “Privacy and Security” report, which set out a comprehensive review of the intelligence agencies’ capabilities and the legal and privacy frameworks that govern their use. In June, David Anderson published his report on the operation and regulation of law enforcement and agency investigatory powers, with specific reference to the interception of communications and the separate issue of communications data. This summer, a panel co-ordinated by the Royal United Services Institute and established by the former Deputy Prime Minister, the right hon. Member for Sheffield, Hallam (Mr Clegg), reported on the legality, effectiveness and privacy implications of the UK’s surveillance programmes and assessed how law enforcement and intelligence capability can be maintained in the face of technological change.
Mr David Winnick (Walsall North) (Lab)
What the Home Secretary quoted from Harold Wilson’s response to a question from Tom Driberg was, of course, correct, but he also said, in the same answer:
“I am aware of all the considerations which I had to take into account and I felt that it was right to lay down the policy of no tapping of the telephones of Members of Parliament.”—[Official Report, 17 November 1966; Vol. 736, c. 639.]
Surely the point is that neither he nor successive Prime Ministers—nor, indeed, Ministers in any other Department—have made a statement changing what was said by Lord Wilson.
Mrs May
The hon. Gentleman refers to Lord Wilson’s statement, from which I correctly quoted with regard to changes.
The three reviews represent a substantial independent review of the frameworks and oversight governing the use of investigatory powers. As the three reports make clear, the use of investigatory powers by the police and the security and intelligence agencies is absolutely vital for national security, in the fight against crime, and if we are to protect the people of this country from harm.
In addition to those reports, I today welcome the fact that the Investigatory Powers Tribunal found no suggestion of improper activity by our security and intelligence agencies. I am pleased to say, once again, that an independent tribunal has declared their activity lawful, and I am grateful for this opportunity to put on record our gratitude to the men and women who, necessarily out of the limelight, do so much to keep the people of this country safe.
The Wilson doctrine recognises the special nature of parliamentary communications and affords parliamentarians important protections. However, as I have said, it can never be the case that MPs can consider themselves above the law. That is a position I hope the whole House can well understand. It is right and proper that we are discussing these issues today, and I look forward to hearing the remaining contributions to this debate.
Joanna Cherry (Edinburgh South West) (SNP)
May I begin by echoing the tribute paid to those Members who have harried the Government on this issue in recent years? It is important to remind ourselves of why we are having this debate. It is because four recent events have called into question the nature and scope of the Wilson doctrine and, indeed, whether it is in any way meaningful.
First, the submissions made on behalf of the Government to the Investigatory Powers Tribunal in the case brought by the hon. Member for Brighton, Pavilion (Caroline Lucas) appeared to attempt to undermine the Wilson doctrine and to suggest that it was impossible to have it in the modern age, given the existence of the mass trawling of data.
Secondly, the content of last week’s IPT ruling seemed to be to the effect that the Wilson doctrine has no legal force and is just an ambiguous political statement. We are looking for clarification of that ambiguity.
Thirdly—this is very important from the perspective of Scottish MPs and, indeed, MPs from other areas with devolved Administrations—during the IPT hearing, official and hitherto undisclosed guidance that entered the public domain appeared to show that a change of policy regarding the scope of the Wilson doctrine had occurred around about 2014.
Fourthly, we are having this debate because of the Home Secretary’s comments last July, during a debate on the Data Retention and Investigatory Powers Bill, in response to a question from the hon. Member for West Bromwich East (Mr Watson), who is now the deputy leader of the Labour party. It seems to me that many of us agree that that was the first time the Wilson doctrine had been described on the Floor of the House in caveated terms. The right hon. and learned Member for Rushcliffe (Mr Clarke) has rightly drawn to our attention the fact that while we may not all disagree about what the Wilson doctrine should actually say, we need to know what the Government think it says.
In July 2014, the Home Secretary talked about certain rules and protocols that would enable interference with parliamentarians’ communications, but she did not say what they were. Instead of explicitly notifying Parliament that the Wilson doctrine was being in any way redefined, the Home Secretary simply presented her comments as a restatement of the original doctrine. However, as other Members have said, previous Prime Ministers, from Harold Wilson in 1966 to Gordon Brown in 2007, had not stated the doctrine with any such caveats. It is interesting and important to remember that, in paragraph 11 of the judgment, the IPT said it was satisfied that what the Home Secretary was referring to in Parliament in July 2014 was the contents of the official guidance to the security services, which we know had changed.
We are having this debate because it is not acceptable for the Executive unilaterally to abandon or modify such a doctrine without explicitly saying that that is what they are doing and informing Parliament. The removal of the protection given by the doctrine or its modification should not occur without any consultation or democratic scrutiny. The Chamber requires from the Government straight answers on their view of the nature and scope of the Wilson doctrine. There needs to be no more prevaricating. There is considerable discontent across the House. The Government should be in no doubt that there will be growing support for the early-day motion tabled by a cross-party contingent over the coming weeks. They need to take this issue very seriously.
If we look at statements by previous Prime Ministers, we can see that they were unambiguous about the doctrine’s existence, nature and extent, despite the fact that there was sometimes pressure from those who argued against the absolute nature of the doctrine. I believe that such pressure was brought to bear on Tony Blair when he was Prime Minister, and he resisted it. The right hon. Member for Haltemprice and Howden (Mr Davis) has repeatedly reminded us that, in 2011, the present Prime Minister confirmed to the House that the Wilson doctrine was still in force. However, since the Home Secretary’s comments last July, hon. Members, including the right hon. Gentleman, have repeatedly sought clarification from the Prime Minister and the Home Secretary without success.
As the first Scottish MP to speak in this debate, I must address an important matter that emerged from the IPT hearing. It emerged that the most recent versions of the operational notes to the security services seem to exclude Members of the Scottish Parliament, the other devolved Assemblies and the European Parliament from any protection by the Wilson doctrine. That appears to be in contrast to versions of the same operational notes that appeared before 2014. SNP Members cannot imagine what event in 2014 could have provoked such a renewed interest in the activities of Members of the Scottish Parliament.
I hear the Home Secretary’s point about the discrepancy between what Jacqui Smith said when she was Home Secretary and the code of practice. However, we need to know why the code of practice and the official guidance seems, at least during some period before 2014, to have encompassed parliamentarians in the Scottish Parliament, the other devolved Assemblies and the European Parliament, but were subsequently changed. We need the Government to tell us what is going on. When the Wilson doctrine was first enunciated, there was no Scottish Parliament, other devolved Assemblies or European Parliament—[Interruption.] As my hon. Friend the Member for West Dunbartonshire (Martin John Docherty) says, some people might like to return to that position, but that is highly unlikely.
We need to know why there has been a change in practice in relation to other parliamentarians in this country. The First Minister of Scotland wrote to the Prime Minister on 24 July seeking urgent clarification about this apparent change of policy, but two and a half months later she has still not received a reply. Liberty’s legal director James Welch has commented that removing the protection from the Scottish Parliament shows
“an arrogant lack of respect for democratic institutions”.
It might be said that such an arrogant lack of respect for the Scottish Parliament is often felt by SNP Members and Scottish parliamentarians.
I understand the Prime Minister to have said that there is supposed to be a respect agenda in relation to the Scottish Parliament. We need to know why the intelligence services and this Government think the Scottish Parliament is less of a Parliament or less deserving of such protection. Do they think Scots deserve less protection of their privacy when communicating with their MSPs than with their Westminster counterparts? As the hon. Member for Rhondda (Chris Bryant) asked, why should unelected peers of the realm enjoy greater protection than elected Members of the Scottish Parliament? Unlike Members of the House of Lords, Members of the Scottish Parliament and of the other devolved Assemblies have constituents’ interests to serve and protect. If there is a matter of principle about protecting communications between constituents and those who represent them, it should apply to all parliamentarians.
I want to stress that insisting on proper protection for the communications of parliamentarians with others is special pleading not on behalf of parliamentarians, but on behalf of the constituents, whistleblowers and campaigners who communicate with them. When people contact parliamentarians they are often in a vulnerable position—for example, somebody in a big Government body or a big corporate entity who wishes to blow the whistle on some official scandal. Yes, hon. Members of the House, the Scottish Parliament, the other devolved Assemblies and the European Parliament also have to be protected from intimidation or oversight by the Government so that they can help such sometimes vulnerable people and do their jobs without fear or favour.
What is to be done? The draft investigatory powers Bill to be brought forward in the autumn is an opportunity to refine the law to protect civil liberties and set minimum protections and safeguards across the board and, I suggest, for communications between parliamentarians and constituents. I very much welcome the Home Secretary’s statement that she will give further consideration to the position of parliamentarians in the Scottish Parliament and the other devolved Assemblies. I echo the call made by other hon. Members that there must be sufficient time to consider the Bill, but I am reasonably hopeful that we will be given sufficient time, because the Home Secretary has said that a draft Bill will be brought before the House.
Chris Bryant
I urge the hon. and learned Lady not to be too confident. Last time we had to pass such legislation, we had to pass the whole lot in a single day. We had to suspend all the normal processes in the House to take through the Bill in a single day.
Joanna Cherry
I was not in the House at that time, but I watched it on the television. I am aware of that, but I am giving the Home Secretary the benefit of the doubt, because she has indicated that it will be a draft investigatory powers Bill.
Mrs May
I am grateful to the hon. and learned Lady for giving me an opportunity to restate what I actually said earlier in response to a comment by the hon. Member for Rhondda (Chris Bryant). We are committed to and will shortly bring forward a draft investigatory powers Bill, which will be available for scrutiny by a Joint Committee of both Houses of Parliament. The expectation is that it will report sometime in the new year, with a view to our introducing the Bill for its passage through Parliament. The aim is to make it a carry-over Bill, with a deadline of December 2016.
Joanna Cherry
I am very grateful to the Home Secretary for confirming that. I fully understand the concerns of those who were Members of the previous Parliament. If things were to be done in such a manner again, there would clearly be an enormous public outcry.
Lady Hermon
The Home Secretary has given a very interesting response to the hon. and learned Lady. Indeed, all the responses have been very interesting. Speaking as a Member from Northern Ireland, it is a growing concern that representatives from the devolved regions, particularly from Northern Ireland, have not been welcomed on to Standing Committees. I urge the hon. and learned Lady to insist that the Joint Committee that considers the draft Bill includes representatives of the devolved regions from this House.
Joanna Cherry
As a novice parliamentarian, I am not sure of the propriety of such a proposal. If the House would find it acceptable, I would endorse the hon. Lady’s suggestion enthusiastically. If the draft investigatory powers Bill encompasses a clause that impacts on any sort of privilege for the Scottish Parliament or the devolved Assemblies, it is crucial that there is consultation with those Administrations.
Lady Hermon
Last week, we looked at the Immigration Bill, which rightly extends to the whole of Northern Ireland. Unfortunately, it appears that no Member from Northern Ireland will be on the Standing Committee. Given that the matter we are discussing today is of such importance, it would be very helpful to have an MP from Northern Ireland on the Joint Committee. I am not saying which party they should be from, but there should be a representative from the region.
Joanna Cherry
I feel the hon. Lady’s pain. At present, it appears that the Standing Committee that will consider the repeal of the Human Rights Act will not contain a representative from Scotland. My party has taken up that matter. I very much endorse the spirit of the hon. Lady’s comments. There must be full and proper consultation with the Scottish Parliament and the other devolved Assemblies in relation to any legislative proposal about privilege for parliamentarians’ communications.
I am coming to the end of my comments and am conscious of the time. In my respectful submission—I stress the word “respectful”—there should be a strong legislative presumption in the forthcoming Bill against interception and other forms of surveillance in respect of parliamentarians. That presumption may be rebutted, but only on the basis of a clear and specific suspicion that a particular parliamentarian’s communications contain evidence of serious criminality or in truly exceptional circumstances, such as where national security is involved. The protection should extend to all parliamentarians, as I have said. The legislation should require independent judicial approval for any surveillance of a parliamentarian or interception of their communications.
Given the constraints of time, I will leave it to others to deal with whether the Wilson doctrine applies to metadata, such as numbers, email addresses, times and locations, as opposed to the contents of communications. However, I will say that metadata may often be all that is needed to understand the nature of a communication, for example that it is from a whistleblower. At present, the interception of metadata does not require a warrant. In my respectful submission, it should do in the circumstances that we are discussing.
Finally, the suspicionless surveillance of parliamentarians and the wider public is contrary to a democracy governed by the rule of law. Intrusive surveillance must always be targeted and proportional.
Mr David Davis (Haltemprice and Howden) (Con)
Before I start on the substantive argument, which is fairly simple, I will say one thing to the House. Those who are interested in this matter should look not just at the judgment that was handed down by the Investigatory Powers Tribunal, but at the transcript of the hearing.
I attended part of the public session. It was an illuminating process and did not necessarily give one much confidence. As the House will know, I have been involved in this subject for many years and am loth to criticise courts, but I was not impressed by the IPT’s understanding of the technology that is available to the agencies to enable them to sift and limit the damage that is done by their intrusion of privacy. To me, that seemed rather important.
Secondly, it is apparent that the ruling means something very specific. It means that the inquiry that was brought by Baroness Jones, George Galloway and the hon. Member for Brighton, Pavilion (Caroline Lucas) is very unlikely to receive an answer because if something is not illegal, they will not be told about it. That is the rule. The hon. Lady will not be told whether something has happened. She will be told only if something illegal has been done. One of the outcomes of this situation is that it will prevent her or any of the complainants getting an answer.
James Eadie, the very skilful lawyer who argued on behalf of the Government, made the point that the Wilson doctrine has no legal basis whatever, is not practical—that is why the tribunal’s lack of understanding was very important—and, therefore, is not binding on the agencies. That is a really serious finding. He spent the best part of two days in incredibly convoluted argument. The only inference that I can draw from the incredible effort he put into getting this outcome is that they had something to hide and that what was happening in secret was a statement that the hon. Member for Brighton, Pavilion or one of the other two complainants had been intercepted.
In the course of the exchanges with the judges, James Eadie was very illuminating on the attitude to this matter. He said, in effect, that if the Prime Minister had come to the House and explained the truth of the matter, post-RIPA, he would have been committing an
“act of political hara-kiri, or something quite close to it.”
That was the attitude of the tribunal to the Wilson doctrine.
Mark Field (Cities of London and Westminster) (Con)
I accept what my right hon. Friend has said, but is not one concern that the Wilson doctrine is 50 years old? It was written in a very different world, before the internet. He has drawn various conclusions from what was said, such as that the Government had something to hide. It might simply have been that the Government recognised that the legislative process, which we are updating, was not fit for the purpose of a modern-day Wilson doctrine.
Mr Davis
I take my right hon. Friend’s point, but that is why I urged Members to read the transcript. What I said is very apparent from the transcript. He is, of course, right that there has been a huge transformation. Metadata, which I will come back to later, simply did not exist in their current form in Wilson’s day. Many of the things that are now available, including email, did not exist in his day. A whole series of things that we all assumed had been swept up in the Wilson doctrine have not been swept up in the Wilson doctrine. That is why the Home Secretary’s case that it is the same as what was enunciated by Harold Wilson all those years ago is simply not tenable. I will come back to that point, too.
Members will notice that the Press Gallery is nearly empty. Over the past week or so, the newspapers have been very derogatory about this case and the argument that we are putting. They say, “Why should MPs be treated any differently from anybody else?” Those, by the way, are the very same newspapers that were in an uproar of anger about the fact that somebody had checked out the metadata of one of their journalist’s telephones. Perhaps they were right in that, but it is an odd dichotomy.
Dr Andrew Murrison (South West Wiltshire) (Con)
What does my right hon. Friend think the deputy leader of the Labour party will think about the stance that has been taken by the shadow Leader of the House, given that the deputy leader of the Labour party is making a career out of exposing the alleged wrongdoings of Members of this House and the other place? Presumably that would be made much more difficult were we exempted from the investigatory instruments that are available to the agencies.
Chris Bryant
I can confirm that the deputy leader of the Labour party is perfectly content with the policy that we are arguing for. Indeed, he is the person who got the Home Secretary to confirm for the first time that she had changed the Wilson doctrine.
Mr Davis
I will return to the subject of the debate.
The answer to those journalists, commentators and editors who think that this is about the House getting above itself, or that in some sense it is not important, is simple: we should not tolerate the Government intercepting or interfering in any way with any of our communications—there is one tiny exception that I shall return to—because MPs are the people who are charged with holding the Government to account. We forget this line from time to time in the sort of schoolboy antics that pass for the reporting of Parliament in this day and age, but we are the ones who hold the Government to account. In doing so, we deal with campaigners, journalists, whistleblowers, other MPs and, of course, our constituents. The text of the judgment states that the only protected component is our constituents, and although they are incredibly important, in some ways they are the least salient of the components that we deal with.
The Home Secretary, quite properly, reminds the House of the demands of national security. She is right to do that because 58 people have died owing to terrorism within the United Kingdom since 2000, and the figure is about 90 if we include those in Tunisia and elsewhere. Security is a serious issue, but so are matters that are brought to our attention by whistleblowers. Mid Staffs occurred because whistleblowers were supressed or ignored—the same effect that we get by diluting the Wilson doctrine. How many people died unnecessarily at Mid Staffs? It was 1,200. We must not forget that whistleblowers are incredibly important and they would, or will, be supressed by what is seen as the demise of the Wilson doctrine.
Let us consider the possible cases. A police officer calls an MP about corruption, but he might be intercepted by other police officers. A prisoner calls his MP about ill treatment in prison, but he might be intercepted and recorded by other prison officers. A tax official calls the Chair of the Public Accounts Committee about sweetheart deals on tax with big companies and Parliament being lied to—hon. Members might begin to realise that these are real cases—but that person might have his life destroyed because of activities under RIPA. Imagine an official from the Ministry of Defence telling an MP about the mistreatment of a prisoner by the British Army, or an immigration officer telling a shadow Home Secretary about Government deceiving Parliament—that case led to the arrest of one of our colleagues, my right hon. Friend the Member for Ashford (Damian Green), some time ago. The absence, failure or demise of the Wilson doctrine would undermine or deter all those cases.
The Home Secretary has a difficult task, because technology is changing under our feet and has been doing so for decades. The difficulty today is that the Wilson doctrine that most people believed was in place is not. The idea that all our communications are protected is untrue for a number of reasons. I cannot find the first reference—I think it was Gordon Brown, but it might have been earlier—but one Prime Minister limited such protection to cases with a warrant from a Secretary of State. Before then it was not limited in such terms. Let us understand what a limitation that is. The report on surveillance by David Anderson, the Independent Reviewer of Terrorism Legislation, points out that there are more than 65 different statutory mechanisms for initiating intercepts and other sorts of communication surveillance. Very few of those require a warrant from the Secretary of State. It is a very narrow protection.
Mr Peter Bone (Wellingborough) (Con)
I have reviewed 27 written parliamentary answers on this subject from the last few years. Most tell us absolutely nothing, but those that do have added the words “Secretary of State’s warrant” to give the impression that something is happening when it is not.
Mr Davis
My hon. Friend is exactly right and that leads me to a case that the previous Justice Secretary brought before the House when it was plain that there had been interception and recording of telephone communications between prisoners and their Members of Parliament as a matter of course. As I have said, that could lead to serious outcomes for those prisoners. The Justice Secretary was able to tell the House that the matter was not subject to the Wilson doctrine because it was not subject to a Secretary of State’s warrant.
Many of those parliamentary questions were also about the wider ramifications of the doctrine, particularly with respect to metadata. It took the Government approximately nine months to answer my question about whether metadata were involved. They told another colleague who is no longer with us—Nick de Bois—that metadata were not included, but when I challenged them it took them nine months to come to a conclusion. The collection of metadata cripples whistleblowers, because it tells us precisely who has talked to whom, when and where. Metadata tracking led to the arrest of my right hon. Friend the Member for Ashford. That area is material to the operation of our holding the Government to account.
The House should be unsurprised that agencies use their powers to the limit. If I were working for MI5, MI6 or GCHQ, I would use every power that I was given to the limit, just as I would if I were a policeman. If I am charged with the security of the state, of individuals and of safety, that will be what I am concerned about, but that is precisely why we must be careful about controlling what people do. The tendency is to stretch the limits or for those limits gradually to move.
The IPT judgment is not the first to have shown agencies moving the goalposts. The most obvious example of breaches by police and agencies concerns journalists, but because journalists are a sensitive group the Government moved very rapidly to provide protection for them—they moved so fast it was rather undignified. Breaches also involve innocent non-governmental organisations—not long ago Amnesty International was intercepted, although the Government did not move on that—and, of course, lawyers.
Intercepting lawyers is serious. Indeed, it is arguably more serious than House of Commons intercepts. In the past when some criminal—by that I mean a terrorist, paedophile or whatever category we are looking at—had their telephone calls intercepted, that intercept would stop when their lawyer came on the line. I went through that in some detail with our erstwhile colleague, Jack Straw, as that was the case when he was Home Secretary although it is no longer true. Now, not only is the intercept not stopped, but it can continue and be recorded. The intercept used to be put in a protected file and was specifically not shown to prosecution lawyers who might be bringing that criminal to justice, but now that is not true. That serious breach will, at some point, lead to a killer being put back on the streets of Britain because they can claim in the European Court, or somewhere like that, that they have not received natural justice because of a breach in equality of arms. That serious and stupid change of policy was made clear by the IPT a little while ago.
The shadow Leader of the House listed MPs who have been affected by intercept. Looking at my list of 10, all I say is that I think they are pretty harmless—that is probably the biggest insult I could give them. Look at who they are. It demonstrates the mindset that leads people to misuse intercept. What on earth were people doing? Of course Jack Straw and Peter Hain had colourful early lives, but what about when they were in Parliament and became Cabinet Ministers? It is extraordinary how this matter is being pushed.
I side with the Home Secretary in one respect: the Wilson doctrine was always a bit slippery. Harold Wilson was a very clever man, but he was not, shall we say, known for his linear thinking. It has always been to some extent deceitful and misleading, but the truth now is that the doctrine is dead. Whether or not it is legally dead, it is in practice dead. It is dead in the eyes of the people—whistleblowers, campaigners and so on—who might come to us, and we have to do something to replace it.
I am glad to hear a commonality of view from those on all Front Benches that we need to put this in statute. That is the only way forward. When the next Bill on this subject goes through the House, I hope it brings together all 65 statutory mechanisms for allowing intercepts and surveillance. Let us understand what it should do. We all know there will be times when the police and the agencies are properly allowed to intercept or put Members of Parliament under surveillance when there is a strong suspicion of a known crime. Frankly, however, that should not be on the Prime Minister’s say-so. It should not be, with respect to her, on the Home Secretary’s say-so. I mean no insult to either of them, but if ever these powers are misused it will almost certainly be by a politician, because they are the people subject to most temptation. It should be on the say-so of a senior judge, or even a court, after presentation of compelling evidence, subject to challenge.
The Government have in place the process they use for terrorism prevention and investigation measures, where the individual cannot know what the evidence is and so will have a special advocate. Those are the measures that should be in any Act. I give notice now that if they are put in the Bill by the Home Secretary, I will support it. If they are put in the Bill by the Opposition, I will support it. If neither put it in, I will propose it myself, because that is the only way to put right what is now in effect a major breach of our democratic traditions.
Mr David Winnick (Walsall North) (Lab)
At the heart of this debate is the concern that the confidentiality between Members and our constituents should not be undermined. That is the nub of this debate and why this issue is so crucial.
In the past 10 years, there have been two instances that, strictly, did not come within the Wilson doctrine. My right hon. Friend the Member for Tooting (Sadiq Khan) found that a conversation he had with a prisoner in prison had been recorded secretly by the authorities. That was totally unacceptable. Understandably, concern was expressed not only by my right hon. Friend, but by many other Members of this House. The other occasion, which the right hon. Member for Haltemprice and Howden (Mr Davis) mentioned, was when the right hon. Member for Ashford (Damian Green) had his Commons and constituency office searched by the police. I want to make it clear that that was not seen at the time as any sort of party issue. The right hon. Member for Ashford is not a member of my party, but I was among those who said that what had occurred was totally unacceptable. The police had no warrant and should not have been allowed to search his Commons and constituency office: just imagine if that were to happen all over again. This is indeed a very important issue.
Ms Margaret Ritchie (South Down) (SDLP)
Does my hon. Friend agree that it is particularly important for Northern Ireland MPs to be able to ensure the protection of all our constituents whenever they give us certain information that requires representation or investigation? That is particularly important in a divided society.
Mr Winnick
I agree entirely.
What was announced by the then Prime Minister in 1966 has of course been confirmed by successive Prime Ministers, including to me when I put a question to Mr Blair shortly after the Labour Government were elected in 1997. To argue, as some have done—the Home Secretary has more or less in some ways given the impression that this is her opinion—that we, as Members of Parliament, want to put ourselves above the law, is in effect to say that the protection we have had for centuries in this House to be able to speak without the threat of legal challenge is wrong. The occupant of the Chair always warns us that we should be careful what we say, especially if we make comments we would not make outside the House. That is an absolute protection for this House: just imagine if it did not exist and we could not say, without legal challenge, what is most important and what could not be said outside. The same applies to what we are debating today: confidentiality between Members and their constituents and others—journalists, whistle- blowers and so on—and their ability to speak to their Member of Parliament on the telephone, or via other forms of communication, safe in the knowledge that their conversation is not being intercepted by the authorities.
The nub of the issue is not special protection or privileges for ourselves. Of course we cannot be above the law. Of course we cannot say to our constituents, “We are special people and we want rights that you do not have.” What we are emphasising—it cannot be emphasised too much—is the right of those who want to contact their Member of Parliament or another Member of Parliament and speak along the lines I have already indicated. That is what this debate is really all about.
I congratulate all those who took a case to the tribunal: the hon. Member for Brighton, Pavilion (Caroline Lucas), the right hon. Member for Haltemprice and Howden and even Mr Galloway—I say that with some reluctance, but I give credit to even such extreme cases. Had the case not gone to the tribunal, we would still not know whether the Wilson doctrine was being applied. It is not appropriate for the tribunal, or any other tribunal for that matter, to take over responsibility for what is essentially a political matter.
I am pleased this emergency debate has taken place. I hope the proposed legislation mentioned by those on both Front Benches will be introduced. In essence, the Wilson doctrine remains. It is quite true, of course, that since 1966 there has been a total revolution in communications. It is a different world, but that does not alter the basic position between Members of Parliament and those who wish to contact them over various matters.
It may be said that the great danger now is terrorism. No one disputes that—the country does face an acute terrorist danger—but in 1966, in a very different political climate, it was the height of the cold war. There was concern on many occasions about spies, and even the possibility of Members of Parliament being engaged with foreign intelligence agencies. What I am saying, since I was there at the time, is that the suspicion was of a different enemy, but suspicion remains. Indeed, it would be difficult to think of a time when there were not enemies who wanted to cause harm to this country, but that does not alter the fact that what Harold Wilson said, under pressure arising from the events in 1966 and the seamen’s strike, was right.
For all the reasons stated, the doctrine should be kept and it would be an extreme disservice to Parliament if the Wilson doctrine was undermined. It is an essential protection, not—I repeat—for MPs, but for those who wish to contact us, constituents or otherwise. That safeguard and security, which I hope they continue to have, is crucial if they are to contact us without fear of having their conversations monitored by the security authorities or anyone else.
Mr Peter Bone (Wellingborough) (Con)
It is a great privilege to follow the hon. Member for Walsall North (Mr Winnick). I do not always agree with him, but today I absolutely did.
Going back to 1966 and Prime Minister Wilson, one of the concerns was that the Prime Minister might be having his telephone conversations intercepted by the security forces. Fast forward to today, and let us say—I am not saying this has happened—we had a Leader of the Opposition who would not press the nuclear button, who was perhaps a member of CND, and whom someone deep in the bowels of MI5 or MI6 thought should not have certain information or needed to be listened into. It is not that far-fetched or impossible.
This is one of the most important debates we have had for a long time, and I am grateful to you, Mr Speaker, for having granted the SO24 application, but I am disappointed more Members are not in the Chamber, because it goes right to the heart of why we are parliamentarians. Yes, we have freedom of speech in the Chamber, but we have to talk to our constituents and other important people, including colleagues, knowing that our conversations are protected. We do not want the Government listening in. Our job is to scrutinise the Government, and if they had listened in to some of my conversations, they would rightly be concerned. No doubt, they could use what I said against me, but that is not the point. We are here to scrutinise the Government, and we need this protection.
If the Wilson doctrine is still in force—I am talking only about telephone calls—and no MPs’ telephone conversations have been intercepted, why has the Home Secretary, or any other Home Secretary who has been challenged about this, not said that no Member has had their phone calls intercepted? The obvious thing to do would be to say, “The doctrine is in force, so no one has had their phone calls intercepted.” I am waiting for my right hon. Friend to leap to her feet and tell me that no MP has had their phone calls intercepted. She does not get to her feet. I suggest that indicates it has happened. I do not think it has necessarily happened under this Government, but I think it has happened over the years.
How could that have happened and the Wilson doctrine still be in force? The Home Secretary, very helpfully, directed us to the answer. She said that the shadow Leader of the House had not read out Prime Minister Wilson’s full statement. He said:
“But if there was any development of a kind which required a change of policy, I would, at such a moment as seemed compatible with the security of the country, on my own initiative make a statement in the House about it.”
The assumption is, therefore, that had it happened, a Prime Minister would have come to the House and said so, but of course there is a get-out clause: to decide it is not in the national interest. May I suggest that that is exactly what has happened over the years? Members’ telephone calls have been intercepted, and the Wilson doctrine is still in force, because every Prime Minister has decided it is not the right moment to come to the House to tell us. Given that she has not interrupted me to say I am wrong, the only conclusion that reasonable people can draw is that Members have had their telephone calls intercepted not just now but over the years. I reckon it has been widespread. Had it not happened, it would have been denied.
Lady Hermon
When the IRA and Sinn Fein were inextricably linked and the IRA was murdering, bombing and creating mayhem throughout the country, Sinn Fein Members believed their telephone calls to be intercepted—and quite right, too, I would say. Does he approve of that?
Mr Bone
The hon. Lady is quite right, but I specifically asked a parliamentary question about whether any Member who had taken the Oath of office had had their phone calls intercepted. Of course, I got a non-reply, because—I believe—it has happened.
President Nixon would have been pleased with the responses to the 27 written questions on this matter that have received answers. There are so many non-denial denials. Only a few days ago, I asked the Home Secretary again about this issue, and again we got an absolute non-denial. In that case, she said she was not allowed to give information about individual intercepts. I was not asking about an individual intercept; I was asking how many there had been. Why on earth is it wrong for this mother of Parliaments to know how many MPs have had their telephone calls intercepted in each year? They do not have to be identified; we just want to know how many.
This could be a huge cover-up that could ruin people’s careers. Home Secretary, you cannot keep dancing on the head of a pin. We need to know the truth. This is so vital. If you have not authorised the interception of any MPs’ telephone calls, why not leap to your feet now and tell me? What conclusion—
Mr Speaker
Order. The hon. Gentleman is normally the most fastidious adherent of parliamentary etiquette, but for the avoidance of doubt, he was not for one moment raising the prospect that I would have authorised any such interception. I would not dream of doing any such thing. The word “you”, which applies to the Chair, could usefully be replaced with the third person.
Mr Bone
Yes, indeed, Mr Speaker. Of course, I was asking if the Home Secretary wanted to leap to her feet. It was probably because she misunderstood me that she did not leap to her feet, so let me give her the opportunity again. If she has not authorised any such telephone intercepts, will she tell the House now? Okay, I think that that answers the question.
We now need to move on. I agree that we need to put the Wilson doctrine—
Mr Davis
Had my hon. Friend not confined the question to telephone calls, it might have been that the Home Secretary did not know the answer. For example, the Tempora programme, widely reported in The Guardian and other newspapers, involves the harvesting of vast quantities of data travelling out through Bude. These data are kept for 30 days and made accessible to the United States, among others. My right hon. Friend the Member for Chichester (Mr Tyrie) ran for several years a campaign on rendition that might have made him of interest to the United States. Liberal party Members ran campaigns on the Iraq war that would have made them of interest to the US. It might well be that the Wilson doctrine is being broken by proxy, as it were, simply by the behaviour of our agencies, without explicit approval being granted in each case.
Chris Bryant
For the avoidance of doubt, I want to make it absolutely clear that my personal objection is not that MPs’ phones might have been tapped—there might be circumstances in which that is perfectly legitimate in order for Governments to defend national security or prevent serious criminality—but the continued pretence and repeated assertion that their phones have not been tapped.
Mr Bone
I almost agree with the shadow Leader of the House. What I am saying is that I have no objection to the tapping of MPs’ telephones for national security, alongside all the safeguards we have mentioned, but we should be told at least once a year how many times that has occurred. We should know not who is involved, but how often it has occurred so that the House knows what is going on. That, however, is the information that we cannot get, which is why we have to put the Wilson doctrine into law. It expands, of course, into e-mails and all the other forms of communication that are now in place.
Let us have the debate. The shadow Leader of the House seemed to take an assurance from the Home Secretary, but I was not sure whether I was listening to Richard Nixon again. It was not clear to me whether legislation will definitely be brought forward, or if that would be only considered. It is essential that we get clarity about that.
I was very attracted to what my hon. Friend the Member for Corby (Tom Pursglove) said when he talked about a treble lock. If an MP’s phone is to be tapped or another form of their communication is to be intercepted, yes, that should be authorised by the Home Secretary and by a judge, but I think it should also be authorised by whoever is sitting in your Chair, Mr Speaker, as the Speaker should also have a role in this. That triple lock would make the process more difficult because if any of those parties disagreed, the proposed intervention would not happen. We need to debate such issues in detail. We cannot pretend that MPs are not having their communications intercepted when clearly, by the omission of a response from the Government, that is exactly what is happening.
Gavin Robinson (Belfast East) (DUP)
At this stage of the debate, I am pleasantly surprised that the contributions have not been as piously pompous as I thought they might be. It is appropriate for MPs of all parties to recognise that this should not be, and must not be, about us. Protections for constituents must lie at the heart of the intended purpose of the Wilson doctrine. If anything is laudable to pursue, it is the protection of those who most need our help.
I have listened to many of the contributions. The hon. Member for Wellingborough (Mr Bone) asked the hon. Member for Rhondda (Chris Bryant) whether the breach of the Wilson doctrine applies to this Government, or to previous Governments over successive decades. We know of many cases of such breaches occurring.
The former Member for Belfast West, Mr Gerry Adams, will be known to many in the House. His car was bugged by MI5, the bugs were detected and it was admitted—not in the House, but in newsprint throughout the UK, by the then Secretary of State for Northern Ireland, Mo Mowlam—not only that the bugging had occurred, but that it had been appropriate. There was no hue and cry about a breach of the Wilson doctrine. It is appropriate for Members to recognise that in situations involving terrorism, steps will be necessary to defend this country’s national security. That was only one example.
Nobody thus far has touched on not just communication between someone of interest to our security services and a Member of Parliament, but communication from Members of Parliament themselves being subject to stringent scrutiny. Reference was made to the Leader of Her Majesty’s Loyal Opposition. Many Members have described with a straight face his position as a threat to national security. If that is the case and it is earnestly believed, that individual should, of course, be subject to appropriate scrutiny in the best interests of this nation and our society.
There are three plaques at the rear of this Chamber, and last week we had a memorial service for Mr Gow. Threats exist for Members of Parliament, and particularly in the context of Northern Ireland, I suspect that there have been many more breaches than in respect of the former Member for Belfast West.
There is a clear desire that should an MP have his communications intercepted, there must be structures in place to make sure that such interception is appropriate and proportionate. The right hon. Member for Haltemprice and Howden (Mr Davis) cited many examples of communications between MPs and their constituents in prison, and we have heard about whistleblowers from the Home Office and the police force. What I did not hear was a fair reflection of what that right hon. Gentleman believed were the consequences regarding the interception of such communication. We should not get caught up, especially with the catch-all methods involving e-mail, in whether a message has been intercepted. Rather, the question is whether it is analysed, and whether action is taken as a consequence of that analysis. Those are the more appropriate considerations for Members, so that will be the important issue when we scrutinise forthcoming legislation.
A briefing paper by Liberty for this debate says that RIPA was silent on the Wilson doctrine, so we were encouraged to believe that the doctrine was enshrined. If I asked a question and the response was silence, I am not sure that I would be satisfied that such a response suited my purposes. I do not think that Members should have had an over-high expectation that the Wilson doctrine was still as it was outlined in 1966. The experiences from Northern Ireland that I cited eminently suggest that that is not the case. The question that this Parliament must decide, which is why the debate is important, is where we go from here, so Members’ contributions in the Chamber will be crucial. It is important that the tone and nature of the debate recognise that protections must be in place not for our sakes, but for those of our constituents.
Ms Ritchie
Does the hon. Gentleman agree that there is an even greater need for the protection of constituents in our context of Northern Ireland where a dirty war operated between paramilitarism, probably, and members of the armed forces by detailing information that could have led, or has been alleged to have led, to people’s deaths?
Gavin Robinson
I thank the hon. Lady, but the Northern Ireland context is likely to have led to more breaches of the Wilson doctrine—and rightly so. In the context of an ongoing terrorism campaign, it is important that our Government and our national security services are there to protect us from people’s—whether they be terrorists or MPs, or terrorists and MPs—nefarious actions.
Ms Ritchie
I thank the hon. Gentleman for being so gracious with his time, but does he not agree that sometimes people’s lives—the ordinary lives of decent constituents—were placed in tremendous peril as a result of such interception involving paramilitaries and others?
Gavin Robinson
I do not want to place too much trust in the security services, but I do trust that when they act, they do so in our best interests, and in the interests of the safety and security of this nation—any of its four regions. That is not to say that my trust could not be misplaced, and it is appropriate to place an onus on the safeguards, how they operate and, most fundamentally, how they will protect us.
Finally, I want to touch on the counter-extremism strategy that the Home Secretary published today. Its goals are laudable, but this constitutes yet another example of how Northern Ireland is excluded from the counter-extremism strategy. Given the extremists who are operating in Northern Ireland, and given the way in which we have had both parliamentarians and constituents operating in such an extreme and destabilising way there, it is ludicrous that Northern Ireland should be specifically excluded from that strategy. Our experience tells us that we have a contribution to make to this evening’s discussion, but it also tells us that if any part of the United Kingdom requires protections from extremism, Northern Ireland should feature.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
I congratulate the hon. Member for Rhondda (Chris Bryant) on his initiative in applying for the debate, and I congratulate you, Mr Speaker, on granting it. It is a timely and necessary debate, and it has been a good debate so far. If anything about it disappoints me, it is the fact that the House has been rather less full than I hoped. I suspect that if at the heart of the debate were a more specific suggestion that Members’ communications had been intercepted, the Benches would have overflowed. I am afraid that this really is not good enough. If I may borrow a phrase from another part of the political lexicon, we need to mend the roof while the sun is shining. It is at this moment, when we are not under the immediate pressure of allegations of that sort, that we should be considering this matter in the context of the broadest possible principles.
I welcome the Home Secretary’s clarification that she considers the Wilson doctrine to be a live doctrine which continues to operate, but I echo the concern expressed by others this evening about just how meaningful it is in 2015. As I said to the Home Secretary in my intervention, we now have a very different constitutional framework, a range of very different ways in which communication is undertaken, and a range of different matters in which Members of Parliament now routinely intervene, many of which had not even been envisaged in 1966.
I am a great fan of the flexibility of the British constitution when, through the operation of doctrines and conventions, it is capable of responding in a way that has common sense at its heart. Sometimes, however, those doctrines and conventions become overused, and, by virtue of the introduction of other legislative frameworks, of which RIPA is one of the most obvious examples, reach a point at which they no longer serve the purpose for which they were originally intended. That, I suggest, is the point that has now been reached.
A remarkable aspect of the debate is the existence of broad agreement. From the speech of the right hon. and learned Member for Rushcliffe (Mr Clarke) onwards, it has been clear that if we undertake this in the way in which we, as parliamentarians, ought to undertake it—openly, and accepting that we all act in good faith—it should be possible to construct a Wilson doctrine for the 21st century, which will, I fear, now have to be enshrined in statute. I hope that a draft regulation of interception Bill, at least, will give us an opportunity to consider how that might be done.
I think it is a matter of broad consensus—I have heard no one suggest otherwise tonight—that the people who stand to benefit from the operation of the doctrine are not Members of this House or, indeed, of the other place, but our constituents. That, I think, is a principle that has not changed since 1966, and one that should be at the heart of any statutory codification. There has also been universal agreement on the principle that Members of Parliament should not be above the law. However, when it comes to people not being above the law, that should of course include the Home Secretary, and anyone else who would be required to sign a warrant in respect of matters such as this. For that reason, I suggest that a degree of judicial oversight of some sort should be incorporated in our new measures.
Dr Murrison
I am listening to what the right hon. Gentleman has to say with a great deal of interest, and I agree with much of it. Does he agree with me, however, that it is slightly important for us to take the public along with us? They will see—and the press has been reflecting it recently—that this simply means parliamentarians putting themselves above the law. Can he define precisely what concerns him about MPs’ relationship with their constituents, and, perhaps, contrast it with what applies to those in other professions, such as healthcare workers, lawyers and journalists? Perhaps, as he comes from Scotland, I can press him further, and ask him whether he regards this as an argument for first past the post, given that we would have to examine the relationships of list MSPs compared with constituency MSPs. Is he concerned primarily about the relationship between a constituent and a constituency MSP or MP?
Mr Carmichael
Let me answer the hon. Gentleman’s second question first, while I can still remember it. I must tell him that list MSPs have constituents as well, but over a much wider range of areas. As for the question of the description, it is a little like an elephant: it is difficult to describe, but you know it when you see it. That is the sort of work that needs to be done, and I believe that it can best be done on a cross-party basis. While we have the time and the space, we should be constructing a new system which is capable of maintaining and commanding the confidence of people across the House, whichever party happens to be on the Treasury Bench at any given moment.
My intervention on the Home Secretary’s speech was prompted by her interesting use of the term “the spirit of the Wilson doctrine” in relation to parliamentarians who are not here or in the other place, but in the devolved legislatures: the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly. I think that there is a fairly simple principle at stake, namely that when we devolve power, we should also devolve the privilege that goes with power. The hon. Member for South West Wiltshire (Dr Murrison) invited me to contrast our position with that of other professionals, such as lawyers, doctors and journalists. I would not contrast it, but I would say that, in many ways, we have the same reasons for such privilege. I say that as a former solicitor. The hon. Gentleman is a medical practitioner, and he understands that there are good and compelling reasons for the extension of privilege to those professions in the way in which it was extended to what is done in the House of Commons.
Dr Murrison
Does the right hon. Gentleman agree with both the Home Secretary and my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) that in the upcoming legislation it would be better for the professions that deal with people and their issues to be dealt with en bloc, so that the public do not see politicians as being in a particular group on their own, and are therefore more likely to understand the need for certain exchanges to be privileged?
Mr Carmichael
I caution the hon. Gentleman, without necessarily disagreeing with him, that we should not allow the best to be the enemy of the good. Ideally, that is the point that we should reach, but if we wait until the standing of the House of Commons, and that of politics in general, is so high that we will not be subject to public criticism for doing what remains the right thing to do, I am afraid that we shall end up waiting for a very long time.
I mentioned the devolved legislatures because it is apparent from reports in the Daily Record that there has been a change of policy. According to the Daily Record, before March 2015 the guidelines given to the security services stated:
“As a matter of policy, GCHQ applies the principles of the Wilson doctrine to Members of the House of Commons, Members of the House of Lords, UK MEPs, and members of the Scottish, Welsh and Northern Irish assemblies”—
however inaccurately they may have been named there. In June, however, it was reported:
“The doctrine does not apply to…the interception of communications of Members of the European Parliament or devolved assemblies.”
If that is the correct statement of the advice, and I have not seen it challenged anywhere, clearly there has been a change. We are entitled to ask why that change was made and in principle why Members of the Scottish Parliament or Welsh or Northern Ireland Assemblies should be treated any differently from Members of this House. The hon. and learned Member for Edinburgh South West (Joanna Cherry) made the point that they have a democratic mandate and duties of democratic accountability in the same way we do. On that basis, there should be no reason for them being treated differently.
As I said at the start, the time for the ability to regulate these matters through adoption or convention is well and truly behind us. There is a clear need for a measure of judicial oversight. In that way, we can ensure confidence, and it is in the interests of the Treasury Bench that the decisions taken command confidence in this House, in other places and across the country with the public as a whole.
The right hon. Member for Haltemprice and Howden (Mr Davis) said that it would be suggested that if we have nothing to hide, we should have nothing to fear. The question is not about what we have to hide or fear, it is about our constituents.
Caroline Lucas (Brighton, Pavilion) (Green)
I start by paying tribute to the many Members who have raised the issue of the Wilson doctrine over many years. There are many of them and it would be invidious to leave any out if I were to try to name them all, but I pay tribute in particular to the indefatigability of the right hon. Member for Haltemprice and Howden (Mr Davis), the hon. Members for Walsall North (Mr Winnick) and for Wellingborough (Mr Bone) and, of course, the hon. Member for Rhondda (Chris Bryant), whom I congratulate on securing this important emergency debate. There has been a strong sense of common cause here. Contributions from all parts of the House have been very much in accord on the kind of principle we want to see in the future, the fact that we are not putting ourselves above the law, and the fact that this is about securing the confidentiality of our constituents—whistleblowers and so on—and is not about making a special case for MPs per se.
The Cabinet Office response to the Investigatory Powers Tribunal ruling was that MPs’ communications were not “improperly intercepted” and that
“all activity has been within the law.”
That is true, but I suggest that it misses the point, which is that the activity that MPs have been repeatedly told was not possible because of the Wilson doctrine has in fact been taking place and constitutes a grave breach of our constituents’ privacy. MPs have been misled about the level of protection afforded by the Wilson doctrine and we need legislation that provides a proper framework for future decisions.
The Home Office has responded to the IPT judgment by reiterating that under RIPA the security agencies must apply for a section 8(1) warrant if they want to target a parliamentarian. This is also true, but it also misses the point. GCHQ and MI5 routinely undertake the generic and indiscriminate trawling of everyone’s data to garner what is called metadata. The Wilson doctrine does not prevent communication between MPs and their constituents, whistleblowers, campaigners or journalists from being captured in this kind of trawl. All it does is stop MPs’ names, for example, being used at the next stage of the process when the security services search that metadata. So they could not search for my name, or indeed the name of any other MP, but that does not prevent them from looking at communications highlighted by a search on another term that could still lead them in exactly the direction they wish to go.
As we now know, while the secret services have guidelines intended to enact the spirit of the Wilson doctrine when they make decisions about accessing analysed data gathered in this way, this is not legally enforceable. The IPT judgment refers to previously unpublished guidance issued to the security and intelligence services on the doctrine. The guidance states that, when considering a warrant application to which the Wilson doctrine would apply, the relevant Secretary of State must consult the Prime Minister, via the Cabinet Secretary. The guidance states, and the IPT agreed, that the doctrine only applies to the direct interception of parliamentarians’ communications under section 8(1) of RIPA, and not indirect or incidental interception under section 8(4) of RIPA. Therefore the guidance as quoted does not provide for a procedure to be followed in the event that an MP’s details came up in relation to a targeted search on something else.
Parliamentarians’ communications are not referenced in RIPA and the IPT judgment seems to assume that this means that the Act therefore overrides the Wilson doctrine. I was not a Member of the Parliament when RIPA was passed but many colleagues here today were and perhaps they, understandably, did not seek to amend the Act to refer to their communications because they believed they were already exempted thanks to Wilson.
The judgment casts serious doubt over repeated assurances from successive Governments that MPs are not being subjected to state surveillance or interception. At best, it appears that the Prime Minister, as recently as 11 September 2015, was unaware of the exact status of the doctrine and ignorant of its application. At worst, he may have been deliberately ambiguous in order to lull MPs into a false sense of security. In this I echo the words of the Government’s own lawyer, who described previous ministerial statements on the Wilson doctrine as
“ambiguity at best whether deliberate or otherwise”.
What is unambiguous is that any change in the doctrine’s scope should have been notified to Parliament, in terms, by the Prime Minister. If the Executive have instead unilaterally rescinded the doctrine without notifying Parliament, that represents what Liberty calls
“a significant, constitutional breach of trust between the Executive and sovereign Parliament to which it must answer”.
Consistent with the absence of any reference to parliamentarians’ communications in RIPA, the interception of communications code of practice, published in 2002, approved by Parliament and in force until earlier this year, is similarly silent on the subject. But its replacement, the draft interception of communications code of practice, published in February 2015, does refer to the potential for parliamentarians’ communications to be intercepted. It has not yet been put before or approved by Parliament, but this change of tack suggests a conscious change of policy and, again, it is unacceptable that MPs have not been properly informed—and, indeed, have actually been issued with ongoing reassurances that the Wilson doctrine protects them. The one exception to this was a comment made by the Home Secretary during the debate on the data retention and investigatory powers last summer, which other Members have already referenced, in which she said:
“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.—[Official Report, 15 July 2014; Vol. 584, c. 713.]
Again, as other Members have said, if there has been a material change, as it appears there has been, it is incumbent on the Home Secretary or the Prime Minister to proactively advise Parliament and detail the implications for our constituents and our wider work. This is not about asking for special privileges for MPs; on the contrary.
I have also been campaigning for nobody to be subjected to mass surveillance. As Amnesty International puts it helpfully: surveillance of communications in any form—from the initial interception itself to access, and further use, whether of content or metadata—is an interference with a range of human rights. Those include the rights to privacy and freedom of expression.
To avoid that interference amounting to an actual violation of rights, it must be lawful, necessary and proportionate. UK law and practice around communications surveillance currently fails not only the lawfulness test, but the necessity and proportionality requirements for non-abusive interference with basic rights. In this instance, it is about members of the public having confidence that their communications with MPs are not being spied upon, and that they can expect representation without their privacy being compromised. It is about trust and about our ability to undertake legitimate parliamentary duties without the security services monitoring us.
I would suggest, as Amnesty has done, that the logical conclusion the Government should be reaching in the wake of the IPT’s judgment is that, in order for surveillance to be both human rights compliant and in line with the Wilson doctrine, those authorising warrants—who should be independent entities—should ensure it is properly targeted at where there is a reasonable suspicion. In other words, there should be no indiscriminate bulk surveillance of anyone’s communications data.
I, too, agree that MPs should not be above the law. If there are grounds to suspect an MP or citizen of any wrongdoing, of course it should be permissible to target their communications for surveillance and interception, provided due process is followed. That is proportionate and appropriate. But it is also quantifiably different from the kind of bulk interceptions to which citizens are routinely being subjected and from which MPs were given the impression that they were exempt.
I want to thank you, Mr Speaker, for your ongoing willingness to facilitate transparency and accountability in respect of the Wilson doctrine. Last week, in the wake of the IPT judgment on the case brought by myself and Baroness Jenny Jones, I was given the green light to ask two written parliamentary questions that would not have been permissible 24 hours earlier—namely, to ask the Prime Minister what information he holds about MPs having had their communications surveilled and further, to ask him whether the Wilson doctrine has been consistently applied to my communications or whether those communications have also been surveilled. I urge other MPs to ask those same questions, as our constituents and other correspondents have a right to know whether they have been spied on. We also need answers to the following questions. Did the Government realise that the Wilson doctrine was not legally enforceable in advance of this ruling? Will the Prime Minister now come clean about how many MPs and their constituents have been surveilled?
The impending publication of the investigatory powers Bill will offer a key opportunity to ensure that the protections supposedly afforded by the Wilson doctrine are indeed properly enshrined in law. I am pleased that the Home Secretary has indicated that she will look at including a principle of that kind in the Bill, but I would be grateful if she could be even clearer when she speaks again in the debate and if she confirmed—
Mr Speaker
Order. May I gently say to the hon. Lady that I am sure her error is an inadvertent one? I do not think that the Home Secretary intends to speak again in the debate tonight, although the shadow Leader of the House might do so if there is time. Of course the Home Secretary is perfectly welcome to do so if there is time, but I do not think she intends to do so. However, I will leave the hon. Member for Brighton, Pavilion (Caroline Lucas) to her own devices.
Caroline Lucas
I am grateful for that clarification, Mr Speaker. I will therefore simply suggest that it would be helpful if the Home Secretary were to intervene on me to clarify that she will definitely include in that Bill the kind of principle that many of us have been describing tonight. I appreciate that she is still thinking about whether this should involve independent judicial approval, as I would suggest, a triple lock or some other mechanism. We would, however, like to hear a firm indication, as a result of this debate, that this issue will be properly addressed and that the hole that has been left as a result of the Wilson doctrine not being properly enforced will be filled by a measure in the new legislation.
All the Members who have spoken in the debate have agreed that this kind of legislation should extend to the devolved legislatures and Assemblies, and to the European Parliament. We do not yet live in a surveillance state, and MPs have a right to expect that their communications, and those of the individuals they have been democratically elected to represent, should not be routinely surveilled or intercepted.
Martin John Docherty (West Dunbartonshire) (SNP)
I am grateful to the hon. Member for Rhondda (Chris Bryant) for bringing this debate to the Floor of the House. Like many Members, I am disappointed that more Members have not chosen to join us, although I am delighted to see that many Scottish National party Members have chosen to do so.
This is a critical issue not only for all Members of this place but for those in all layers of Government, including Members of our Parliament in Edinburgh and of the Assemblies in Wales and Northern Ireland. It is also critical for members of other democratically elected mandates in the Union, especially Members of the European Parliament. I note that the Member who mentioned Members of the Scottish Parliament is no longer here, but I remind those who have sought to remind us of the differing mandates in Scotland, that there are also differing mandates for Members of the European Parliament who are elected on the regional system. It was suggested that we should include the entire nation of Scotland, which was a ridiculous proposition.
Like most dogma, this doctrine seems neither sacrosanct nor enforceable, and if truth be told, the will of the House has never been sought in this matter. As in so many matters, the House has been ill-informed on the limits of the Wilson doctrine. This might be my own personal cynicism, but I find that rather naive. We are now debating this for the first time and calling for legislation for the first time since 1966. The hon. Member for Brighton, Pavilion (Caroline Lucas) had to physically go to court in order to bring the matter to the Floor of the House. I congratulate her on that.
The purpose of the workings of the Executive in a liberal democracy must be to maintain the defence of the separation of the Executive from this legislative body, be that in this House, in our Parliament in Edinburgh or in the devolved Assembles of Wales and Northern Ireland. The pronouncements of the late right hon. Member for Huyton, Harold Wilson, bound neither future Prime Ministers nor, it would seem, Home Secretaries. Instead, the doctrine is the statement of a belief and faith in what is usually a fairly small issue. In this instance, we are talking only about the telephone conversations of Members of this House, and nothing else. It is the perhaps naive collective belief of Members here and beyond that our representative role as constituency MPs should not be undermined by a range of intelligence agencies not limited to MI5, and that it has not been so undermined since that near ex cathedra statement of the Prime Minister in 1966.
If that belief and trust have been broken—the debate so far seems to suggest that they have been—it is the duty of the Government and perhaps of the Home Secretary of the day, without prompt and with due diligence, to seek a hasty remedy by bringing legislation before the House. The Home Secretary suggested earlier that there could be elements of the investigatory powers Bill that would find favour across the House, and I welcome that.
None the less, I ask the Government to publish with haste the details of how many Members have been investigated in a year. The hon. Member for Wellingborough (Mr Bone) also asked that question. I would perhaps go further and ask how many of those Members have been found wanting in their communications. Can we be told how many were found to pose a risk to the security of the country as a result of the examination of their telephone calls, emails and other communications for security purposes by all elements of the security services, so as to defend the reputation of this House and the need of its Members to be able to hold the Executive to account without hindrance?
This is also an issue for our Parliament in Edinburgh and the other devolved Assemblies. That was particularly the case for our colleagues in the Scottish Parliament during the independence referendum, critically in relation to the communications of the Scottish Cabinet—[Interruption.] I can hear tutting, but this is an issue that many people in the United Kingdom will find important. Let us be in no doubt that all communities in Scotland would find such a situation an outrage and an affront to the sovereign will of the Scottish people and the independence of their Parliament in devolved matters.
Not since the publication of the encyclical “Humanae Vitae” has a doctrine been so flagrantly ignored. The Wilson doctrine has not sought to propagate the population, but its principles have been unfulfilled and found wanting. The doctrine has been found wanting for some years, but never more so than on 15 July 2014 when the Home Secretary, in response to the now deputy Leader of the Opposition, the hon. Member for West Bromwich East (Mr Watson), stated:
“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”.—[Official Report, 15 July 2014; Vol. 584, c. 713.]
As with most doctrines, people seem to be making this one up as they go along.
It would seem that the very nature of our constitutional framework leaves this House, this Parliament and its elected Members at the whim of the unelected and the unaccountable. It is a constitutional fudge that affords the Executive the opportunity to undermine the role and independence of this House and all its elected Members. I am not pointing a finger at the present Government; this could apply to any Government since the 1960s, or indeed earlier. I hope that when we debate the investigatory powers Bill, the Government will at least offer to support any legitimate defence of our liberty as parliamentarians. That applies to the liberty of those of us in this House, but also to those in our Parliament in Scotland and in the Assemblies of Wales and Northern Ireland, as well as to those who represent this country in the European Parliament.
Chris Bryant
I promise you, Mr Speaker, and the Home Secretary, who is already bored by my comments, that I will not speak for long. I am a former curate in the Church of England, so I am accustomed to doctrine being a rather loose concept, but the 38 articles have nothing on the Wilson doctrine. [Interruption.] They were often referred to as the 38 articles, because even though they had to swear allegiance to the 39 articles very few clergy in the Church of England believed in all 39 and clergy often used to leave one of the buttons on their cassock undone just to show that they did not agree with one of the 39 articles. Broadly speaking, that is what the Government have done since 1966; they have been wearing a cassock called the Wilson doctrine but leaving several of the buttons undone.
Excellent contributions have been made in the debate by Scottish National party Members, by the Green party, by colleagues from Northern Ireland, by my fellow Labour Members and by Government Members, but I have sometimes felt as if I have been in an episode of “Through the Looking-Glass” because words have been used in a way that defies their own meaning. It is a bit like when Humpty Dumpty said:
“When I use a word…it means just what I choose it to mean—neither more nor less.”
The truth is that there has been a change; Wilson said Members phones’ would not be tapped. I think we know from this debate that Members’ phones have been tapped, yet successive Prime Ministers and Home Secretaries have sworn blind to this House—they have made written statements and said it time and again in this House—that the Wilson doctrine is fully in place. The truth of the matter is that it is not. I have no objection to the fact that Ministers will, on occasion, have allowed the interception of Members’ communications to have happened, if that is in the interest of national security—no Member of Parliament should be above the law, as everybody has specified—but we should just own up to that fact. If the doctrine is dead, it should be consigned to that place to which all previous doctrines have disappeared when they have been surrendered—to limbo, which itself is a doctrine now surrendered by the Roman Catholic Church.
I say to the Government that I hope that as a result of this debate we can be straightforward in what we say to the public. First and foremost, we should not rely on a doctrine—we should rely on statute law. I hope that the Government will soon introduce legislation which can go to the Joint Committee. I hope that that Committee will be set up as soon as possible so that we can consider all these issues in the round, as they affect whistleblowers, campaigners, those who correspond with MPs and of course constituents. Secondly, there must be greater judicial oversight; it must surely be nonsense that in this country, which prides itself on the rule of law, a politician should be in the position of deciding whether a politician’s communications can be intercepted, and only politicians are in the position of making that judgment. Labour Members believe that a senior judge should be making that decision.
Finally, I come to a point that has been well made by many others: this is not about MPs being a special class of people or seeking special privileges; it is about parliamentarians being able to do the job that they are assigned to by the voters in the country. That should apply not only to Members of this House, but to Members of the other House, Members of the devolved legislatures and Assemblies, and UK Members of the European Parliament. I very much hope that in the next year it will be possible to put the doctrine to bed and have proper statute law to protect our constituents and our ability to hold government to account.
Question put and agreed to.
Resolved,
That this House has considered the operation of the Wilson Doctrine.