By David Davis MP
The Wilson doctrine has, for almost half a century, stood as a vital piece of Britain's delicate constitutional jigsaw. The convention that MPs' communications should not be intercepted by police or security services has allowed MPs to feel safe communicating with whistle-blowers, government sources, lawyers, policy advisers, and even each other, without fear that the government is listening in. The Investigatory Powers Tribunal yesterday revealed these protections for what they are: worthless.
The government has, for several years now, proclaimed to all who asked that the Wilson Doctrine was still in force. Since Harold Wilson declared in 1966 that, "there should be no tapping of the telephones of Members of Parliament," the scope of the doctrine was expanded by Tony Blair to include, "telephone interception and to the use of electronic surveillance by any of the three Security and Intelligence Agencies." This extension was perfectly reasonable given the increasing reliance on emails, text messages and other, modern forms of communication.
With the Snowden revelations uncovering the extent of the government's bulk data collection programmes, there were fears that the Wilson Doctrine had been quietly dropped. But on multiple occasions government spokesmen insisted that parliamentarians' communications were still protected. I have received several written assurances from ministers that the doctrine remained unchanged. As recently as 9th September the Prime Minister assured me in the Commons, in response to a question at PMQs, that the Wilson Doctrine remained in force.
So it was surprising to hear the conclusion of the Investigatory Powers Tribunal (IPT) in a case that Caroline Lucas and Jenny Jones brought against the intelligence agencies. The IPT ruled that in fact the Wilson Doctrine offers no special protections from interception. The Doctrine has 'no force in law'. And that it is merely 'a political statement in a political context, encompassing the ambiguity that is sometimes to be found in political statements'.
Essentially, the tribunal declared that the Wilson Doctrine was worth no more than the paper it was written on. The court even decided that, 'the Wilson doctrine does not operate so as to create a substantive legitimate expectation,' an extraordinary statement to make given that many MPs have, for years, believed in and relied on the protection it supposedly granted.
This raises a number of concerns. To start with, the government has led MPs to believe that their communications were protected when, in fact, no such protections existed. Those of us who made more extensive enquiries of the government, for example as to how the Wilson Doctrine applied to bulk data collection, were rebuffed with prevarication and obfuscation.
It is clear that the security services have for years been pushing the boundaries of what is permitted, interpreting the doctrine as permissive rather than restrictive. For example, when Gordon Brown, as prime minister, clarified the status of the Wilson Doctrine, he stated that, "[it] applies to all forms of interception that are subject to authorisation by secretary of state warrant." However, when this is transcribed to the security services' official guidance, it states that the Wilson Doctrine applies to communications that are, "subject to authorisation by a warrant signed by a Secretary of State only."
By including the word 'only', the security services interpreted Gordon Brown's clarification on the extent of the Wilson Doctrine in its narrowest possible form. Similarly, the internal guidance of the agencies restricts the protection of the doctrine to communications with constituents, leaving unprotected any communications with campaigns, lawyers, journalists and whistle-blowers, all of them potentially very sensitive indeed.
Such things should not be for the security services to decide, but are proper matters for Parliament.
That the government should ride so roughshod over this vital constitutional mechanism is a scandal, one that undermines the very functioning of our democracy. It is staggering the government has been so blasé about this, and while the IPT's ruling is deeply worrying, it is at least to be commended for shining a light on this issue.
Without the supposed protections offered by the Wilson Doctrine, parliamentarians should now seek the legal protections that the IPT has decided do not exist. The upcoming Investigatory Powers Bill should offer the perfect opportunity for Parliament to consider what protections its members should, or should not, have.
David Davis is the Conservative MP for Haltemprice and Howden and the former shadow home secretary
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