There is a reasonably unusual parliamentary event today for those interested in intelligence and surveillance. In keeping with the subject matter it will be laced with a healthy dose of paranoia and conspiracy theory, I suspect.
Shadow leader of the house, Chris Bryant, has successfully persuaded the speaker to hold an emergency debate (under standing order 24 for aficionados of this type of thing) on Monday 19 October to clarify the status of the Wilson doctrine.
The Wilson doctrine is an assurance provided by former prime minister Harold Wilson, made in 1966 at a time when some members of parliament feared that their phone calls were being ‘tapped’ by intelligence agencies. Harold Wilson told parliament that he had decided ‘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 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 statement has been repeated by successive governments in response to questions from MPs about their ‘immunity’ from interception.
In my view this ‘doctrine’ has taken on a significance for MPs beyond its scope in reality and ignoring the developments in regulation of surveillance and interception since. I suspect that much of today’s debate will be MPs trying to get understandable assurances for their ability to represent constituents and whistle-blowers which would be far better served by depending on legislation rather than on an ambiguous and outdated prime ministerial assurance.
Today’s debate has been prompted by a recent judgement from the investigatory powers tribunal arising from the Edward Snowden leaks. This is particularly about the United States national security agency’s collection and the use of ‘metadata – the who, where, when and how’ but not the ‘what’ i.e. the content of internet based communication.
The judgement concluded
- The Wilson doctrine applies to targeted, but not incidental, interception of parliamentarians’ communications
- It was never absolute
- It has no legal effect – but in practice the agencies must comply with the draft code and with their own guidance which already gives additional safeguards with respect to the interception of parliamentarians’ communications
Compared to 1966, there is now a considerable infrastructure of legislation, guidance and scrutiny of surveillance and interception. However, members of parliament continue to think they are best served by an ambiguous assurance with no legal basis. Since 2005, successive interception of communications commissioners have argued that the Wilson doctrine should be scrapped. I believe they are right.
It is too vague – and not even in the good way that some provisions around secrets necessarily should be! The original statement is clear that the prime minister could have allowed MPs’ communication interception and retrospectively announced the policy change.
It has been overtaken by events – in 1966, there was little legal infrastructure around the use of surveillance and interception. The intelligence agencies could have intercepted calls without clear reason or accountability. Since then subsequent pieces of legislation and codes of practice have strengthened protection. Nobody’s communication (MP or otherwise) can be intercepted without a secretary of state signing a warrant, subject to review by the commissioner and only for the purposes of protecting national security or tackling serious crime. If an MP fulfilled these criteria, should they be exempt from interception?
It is too narrow – MPs argue that their elected position requires them to be able to safeguard communication from constituents and other whistle-blowers. That is a legitimate concern, but does it not also apply to members of the European parliament, members of the Scottish parliament, Welsh assembly members and even some councillors – none of whom are covered by the Wilson doctrine?
Today’s debate is probably timely. However, I hope MPs will resist the temptation to use misplaced arguments about their own importance and ill-founded conspiracy theories to try to protect an outdated ‘doctrine’. A modern, transparent legally sound basis for interception and protection from it is what is needed now.
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Jacqui Smith is a former home secretary, writes the Monday Politics column for Progress, and tweets @Jacqui_Smith1
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