Submission to Joint Committee on Draft Investigatory Powers Bill

billThis was my written submission to the Joint Committee on the Draft Investigatory Powers Bill. The committee was established in November 2015 to consider the draft Bill. The committee received a total of 148 written submissions and took oral evidence from 59 individuals. It published its report in February 2016.

The committee’s report referred to this evidence in relation to the operation of judicial commissioners (p.109) and particularly in relation to protections for the communications of Members of Parliament, the so-called ‘Wilson doctrine’, (pp.135-6).


Submission from Dr Andrew Defty, Reader in Politics,

School of Social and Political Sciences, University of Lincoln

  1. This submission deals primarily with the question of whether the powers set out in the draft bill are sufficiently supervised, and focuses in particular on interception by the intelligence and security agencies. It also offers some comments on the issue of protections for MPs’ communications and the status of the so-called ‘Wilson Doctrine’.
  1. The submission draws upon the findings of a major research project on parliamentary scrutiny of the intelligence and security agencies carried out by a team of researchers at the University of Lincoln, which has been published in a number of journal articles and a book.[1] This submission also reflects comments made in a submission to the Investigatory Powers Review conducted by David Anderson, QC. The research on which the submission it based was funded in part by the Leverhulme Trust and examined the various mechanisms by which parliament and parliamentarians seek to scrutinise the intelligence and security agencies, including through legislation, debates, the work of the Intelligence and Security Committee and other parliamentary committees and the tabling of questions and motions. In addition to a detailed examination of parliamentary business (reports, debates, EDMs and questions), the research drew on interviews with more than 100 MPs and Peers, including four former Home Secretaries, six former Foreign Secretaries, current and former members of the Intelligence and Security Committee, and with senior officials in the Foreign Office and the Cabinet Office. This submission also draws upon some follow-up research on the impact of recent reforms on the operation of the parliamentary Intelligence and Security Committee.

Nature of the oversight framework

  1. Intelligence oversight is generally defined as a process of supervision designed to ensure that intelligence agencies do not break the law or abuse the rights of individuals at home or abroad. It also ensures that agencies are managed efficiently, and that money is spent properly and wisely. There is, however, no one model of oversight. It does, of necessity, vary from country to country, and may be affected and defined by a state’s history, constitutional and legal systems, and political culture. Nevertheless, it is possible to identify a range of institutions and actors that may be involved in the oversight of intelligence and security agencies. Oversight is typically seen as taking place at several different levels: internal oversight at the level of the agency; executive oversight by the government; legislative oversight by democratically elected politicians, usually through specialist legislative oversight committees; external oversight by independent bodies such as the judiciary; and oversight by civil society through actors such as pressure groups and the media.
  1. Britain has a patchwork of oversight arrangements involving different actors with different roles. This multi-faceted approach has a number of advantages. A combination of organisational and functional oversight serves to overcome the potential accountability gaps when oversight arrangements are tied to specific agencies. A combination of Executive and legislative scrutiny is an important check on legislative power, and the use of external review processes involving judges, not only helps to ensure that covert activities are carried out within the law, but may also serve to lift oversight above political partisanship. However, there are also a number of potential problems with what may be seen as a patchwork approach. It is important to ensure that as changes take place, both organisationally and functionally, that oversight mechanisms are adapted to keep pace with change and gaps do not emerge. It is also important to remember that each level of oversight has a distinct and important role in terms of providing effective and credible oversight and that changes in the role and powers at one level do not compensate for deficiencies at another level. For example, in the context of the draft Bill changes to the authorisation process do not obviate the need for strong post hoc review. In considering reform of any aspect of the regulatory framework consideration should be given to the framework as a whole to ensure that accountability gaps do not emerge.

The authorisation process for the issue warrants

  1. The draft Bill restates the principle that warrants for interception by the intelligence and security agencies are issued by a Secretary of State. The involvement of Ministers at this point is important in terms of maintaining democratic accountability and legitimacy. In our research we interviewed a number of those with direct experience of the warranting procedure, including former Home and Foreign Secretaries. These individuals testified as to the robustness of the warranting process, the seriousness with which they approached the task and the amount of time they devoted to reviewing every warrant. However, the existing warranting process does raise a number of concerns. It is anomalous that warrants for the interception of communications and covert intrusion, actions which involve the state in the most serious intrusion of individual liberties, are signed by a Government Minister and not a judge. Moreover, given the large number of warrants signed each year there are also obvious concerns about the amount of time available to a busy Secretary of State to scrutinise each warrant in detail. In our submission to David Anderson’s review we recommended that an additional layer of independent judicial scrutiny at the point at which warrants are signed may help to relieve the burden on hard-pressed Ministers and also provide more effective scrutiny of the process. The draft bill’s inclusion of a ‘double-lock’ procedure whereby warrants issued by a Secretary of State would require approval by a Judicial Commissioner before coming into force is a significant improvement on the current arrangements.
  1. The main potential point of contention would appear to be the stipulation, at section 19 (2), that in approving a warrant, Judicial Commissioners must apply the same principles as would be applied in cases of judicial review. This reflects the recommendations of the RUSI report but not those of the Anderson review. I am not convinced that this represents a significant limitation on the powers of the Judicial Commissioner, particularly when considered alongside section 19 (1). Moreover, judges have consistently shown themselves prepared to exercise considerable rigour and independence in the application of judicial review in other, related, areas such as control orders. Lord Pannick’s recent article in The Times was particularly convincing in this respect.[2] However, the advantages are of this limitation on the role of Judicial Commissioners are not clear. If a Secretary of State is convinced of the case for interception, as they always claims to be, and particularly when a process exists to challenge the decision of a Judicial Commissioner, then allowing Judicial Commissioners to review the application on the same terms as Ministers would seem to provide a more robust system and one which is less open to criticism.
  1. In my view a more significant flaw in the proposed authorisation procedure is the mechanism whereby Ministers might appeal against the decision of a Judicial Commissioner. Section 19 (5) states that where a Judicial Commissioner refuses to approve a decision to issue a warrant, the decision may be referred to the Investigatory Powers Commissioner. The authority of the Investigatory Powers Commissioner to approve warrants is set out in section 167 (6), which states that the Investigatory Powers Commissioner will be a Judicial Commissioner. Allowing the Investigatory Powers Commissioner to act as final approval in the issue of warrants represents an undesirable blurring of the roles of authorisation and oversight. It is the role of a Judicial Commissioner to approve the issue of warrants, while the role of the Investigatory Powers Commissioner is to provide post hoc review of this process. The draft Bill makes the Investigatory Powers Commissioner the ultimate authority in decisions about the issue of warrants, whilst also being responsible for reviewing such decisions. It should go without saying that it is not a good idea for those responsible for making decisions, to also be responsible for reviewing their own decisions. While it might be beneficial for the post of Investigatory Powers Commissioner to be held by an individual who has previously served as a Judicial Commissioner, the two roles should not be combined. If a process for challenging the decision of a Judicial Commissioner is to be included in the Bill then the model set out in the Anderson report whereby one of the Judicial Commissioners would be designated as the Chief Judicial Commissioner would be preferable to involving the Investigatory Powers Commissioner in the authorisation process.
  1. One long-standing area of ambiguity which is not clarified in the draft Bill relates to which Secretary of State is responsible for signing interception warrants. The field of intelligence is one in which few parliamentarians, or indeed government Ministers, have any experience and the application of investigatory powers as set out in the Bill is complex. It is standard practice that Home Office warrants are signed by the Home Secretary while warrants for covert activities abroad are signed by the Foreign Secretary, while those relating to defence intelligence may be signed by the Secretary of State for Defence. However, neither in previous legislation or the draft Bill is it specified which Secretary of State should sign warrants, or who should sign in the absence of the relevant Secretary of State. While it is clear that in most cases warrants will be issued by a Secretary of State with the appropriate knowledge and understanding of the process, this may not always be the case. As part of our research we interviewed a former Secretary of State from a different department entirely, with no experience in this area who claimed to have routinely signed Home Office warrants when the Home Secretary was unavailable. In order to ensure that the arrangements for issuing warrants is robust it would be helpful if the Bill specified in more detail which Secretary of State should issue warrants and what the process should be in the absence of the designated Secretary of State. It would be preferable if, in the absence of the designated individual, a clear chain of responsibility was established which involved passing warrants to another designated Secretary of State or upwards to the Prime Minister, rather than to a Secretary of State from any other department.

The Investigatory Powers Commission

  1. The draft Bill includes significant proposals for reform of the current independent oversight regime, most notably with the establishment of a new and powerful Investigatory Powers Commission. The creation of a single Investigatory Powers Commission to replace the patchwork of existing commissioners is a welcome development.
  1. The new Investigatory Powers Commission is likely to be a powerful body but there is a need to ensure that it does not overlap with other oversight bodies. As noted in paragraph 7 above, it is important that the role of the Investigatory Powers Commission, which is one of audit, inspection and review, is kept separate from that of the Judicial Commissioners who are directly involved in authorisation. There is also potential for some overlap between the work of the Investigatory Powers Commission and the parliamentary Intelligence and Security Committee. In addition to overseeing the warranting process the draft Bill provides the Commission with a wide remit, which includes, at the Prime Minister’s request, keeping under review ‘any aspect of the functions’ of the intelligence services, the heads of the intelligence services and the any part of the armed forces engaged in intelligence activities. Not only does this expansive role place an extra burden on the resources of the Commission, it also appears to overlap considerably with the functions of the Intelligence and Security Committee. The lack of clarity about roles can, of course, lead to duplication but may also lead to accountability gaps if each body assumes that the other has primary responsibility in a particular area or case. There is also the possibility that governments can play scrutiny bodies off against each other, assigning tasks to the body which it assumes will offer the most agreeable response, or when duplication occurs being able to pick and choose which findings to accept. While ensuring close cooperation between the various oversight bodies, it would nevertheless be beneficial if a clear demarcation was maintained between their respective roles, and in particular if some clarity was provided in relation to the overlapping statutory roles of the Investigatory Powers Commission and the parliamentary Intelligence and Security Committee.
  1. The main challenge involved in establishing this new oversight body is to ensure that sufficient resources are made available. The Investigatory Powers Commission will be replacing at least six existing offices (section 178 (1)), while this will inevitably serve to prevent some duplication, it is important to ensure that the creation of the new body should not lead to any loss of function or capacity. There can be a tendency to view resources allocated to oversight as detracting from those which might be devoted to the important work of protecting national security. However, as noted in paragraph 3 above, oversight is not simply about ensuring that intelligence agencies do not exceed their powers, it is also an important means of maintaining and improving effectiveness. Efficacy and oversight are not mutually exclusive, and rigorous and effective oversight should be seen as a force multiplier when it comes to combating threats to national security. While it is difficult to legislate for sufficient resources, it is nevertheless, crucially important to ensure that the new Investigatory Powers Commission has sufficient resources in terms of staffing, budgets and expertise. In particular, it is vital that it has the necessary technical expertise in order to effectively exercise its functions.

Additional protection for Members of Parliament and other legislatures

  1. The draft Bill includes new protections for the communications of Members of Parliament and other legislative bodies (section 16). To date the interception of the communications of parliamentarians has been covered by the Wilson Doctrine, a convention established by the Prime Minister, Harold Wilson, in 1966. Successive Prime Ministers, including the current one, have expressed their continued commitment to the application of the Wilson Doctrine and the convention continues to have strong support amongst parliamentarians. However, there is also considerable confusion, in parliament and beyond, about the scope of the Wilson Doctrine[3] and it has come under pressure in recent years, notably from the Interception of Communications Commissioner who called for its repeal and from the Investigatory Powers Tribunal which concluded that it had no legal basis. The passage of legislation relating to the interception of communications since the 1980s means that the Wilson Doctrine is now out of step with the current statutory framework. If parliament believes that the communications of parliamentarians should be treated differently to those of other members of the public then the draft Bill provides a clear opportunity to place the Wilson Doctrine on a statutory footing.
  1. One notable anomaly of the Wilson Doctrine, which has become more obvious in recent years, is that it has only been applied to members of the House of Commons and the House of Lords. The draft Bill’s extension of additional protections to members of the devolved assemblies and UK members of the European Parliament, in addition to members of the Westminster Parliament, serves to resolve a notable inconsistency in the current operation of the Wilson Doctrine.
  1. However, while the protections set out in the draft Bill do represent a raising of the bar when it comes to the interception of communications of members of the relevant legislatures, in its current format the Bill does not represent a codification of the Wilson Doctrine. The Wilson Doctrine comprises two elements. The first is a general, although not absolute, prohibition on the interception of communications of Members of Parliament by the intelligence services. The second is that, if there is a change in that general policy the Prime Minister will inform Parliament, at a time commensurate with the interests of national security. The proposed protections in the draft Bill arguably enshrine the first element, but there is no provision for the second. If it was felt desirable to codify the Wilson Doctrine more fully, one possible solution could be a process whereby the Prime Minister will inform the parliamentary Intelligence and Security Committee, or possibly the committee’s Chair, if a warrant is issued for the interception of the communications of a member of a relevant legislature.

Conclusions and Recommendations

The authorisation process for the issue warrants

  1. The draft bill’s inclusion of a ‘double-lock’ procedure whereby warrants issued by a Secretary of State would require approval by a Judicial Commissioner before coming into force is a significant improvement on the current arrangements.
  1. If a Secretary of State is convinced of the case for interception, as they always claims to be, and particularly when a process exists to challenge the decision of a Judicial Commissioner, then allowing Judicial Commissioners to review the application on the same terms as Ministers would seem to provide a more robust system and one which is less open to criticism.
  1. Allowing the Investigatory Powers Commissioner to act as final approval in the issue of warrants represents an undesirable blurring of the roles of authorisation and oversight. If a process for challenging the decision of a Judicial Commissioner is to be included in the Bill then the model set out in the Anderson report whereby one of the Judicial Commissioners would be designated as the Chief Judicial Commissioner would be preferable to involving the Investigatory Powers Commissioner in the authorisation process.
  1. In order to ensure that the arrangements for issuing warrants is robust it would be helpful if the Bill specified in more detail which Secretary of State should issue warrants and what the process should be in the absence of the designated Secretary of State. It would be preferable if, in the absence of the designated individual, a clear chain of responsibility was established which involved passing warrants to another designated Secretary of State or upwards to the Prime Minister, rather than to a Secretary of State from any other department.

The Investigatory Powers Commission

  1. The creation of a single Investigatory Powers Commission to replace the patchwork of existing commissioners is a welcome development.
  1. It is important that the role of the Investigatory Powers Commission, which is one of audit, inspection and review, is kept separate from that of the Judicial Commissioners who are directly involved in authorisation.
  1. While ensuring close cooperation between the various oversight bodies, it would nevertheless be beneficial if a clear demarcation was maintained between their respective roles, and in particular if some clarity was provided in relation to the overlapping statutory roles of the Investigatory Powers Commission and the parliamentary Intelligence and Security Committee.
  1. It is crucially important to ensure that the new Investigatory Powers Commission has sufficient resources in terms of staffing, budgets and expertise. In particular, it is vital that it has the necessary technical expertise in order to effectively exercise its functions.

Additional protection for Members of Parliament and other legislatures

  1. The passage of legislation relating to the interception of communications since the 1980s means that the Wilson Doctrine is now out of step with the current statutory framework. If parliament believes that the communications of parliamentarians should be treated differently to those of other members of the public then the draft Bill provides a clear opportunity to place the Wilson Doctrine on a statutory footing.
  1. The draft Bill’s extension of additional protections to members of the devolved assemblies and UK members of the European Parliament, in addition to members of the Westminster Parliament, serves to resolve a notable inconsistency in the current operation of the Wilson Doctrine.
  1. While the protections set out in the draft Bill do represent a raising of the bar when it comes to the interception of communications of members of the relevant legislatures, in its current format the Bill does not represent a codification of the Wilson Doctrine
  1. If it was felt desirable to codify the Wilson Doctrine more fully, one possible solution could be a process whereby the Prime Minister will inform the parliamentary Intelligence and Security Committee, or possibly the committee’s Chair, if a warrant is issued for the interception of the communications of a member of a relevant legislature.

18 December 2015


[1] H. Bochel, A. Defty and J. Kirkpatrick, Watching the Watchers: Parliament and the Intelligence Services, London: Palgrave, 2014.

[2] D. Pannick, QC ‘Safeguards provide a fair balance on surveillance powers’, The Times, 12 November 2015.

[3] A. Defty, H. Bochel & J. Kirkpatrick, ‘Tapping the telephones of Members of Parliament: the Wilson Doctrine and Parliamentary Privilege’ Intelligence & National Security, vol.29, no.5 (2014), pp.675-697.

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MI5 on the BBC: more PR than scrutiny

This post first appeared on the Democratic Audit blog on 6th October 2015.


000_0159Public statements by heads of the British intelligence and security agencies are still rare enough to attract considerable attention. Moreover, representatives of the intelligence agencies do not step into the spotlight without good reason. The interview with Andrew Parker, the Director General of the Security Service (MI5) on BBC Radio 4’s Today programme last week was, therefore, significant for a number of reasons.

While much has been made of the fact that this was the first live interview with a serving head of a British intelligence agency, it is just the latest manifestation of a strategy of openness which began in the mid-1990s. However, public speeches by intelligence chiefs, the creation of websites for the agencies and the publication of official histories have often been more about information control than opening the agencies up to wider public scrutiny. Moreover, it is important to remember that the intelligence agencies have a long-established and often mutually beneficial relationship with the British media. Stories about the world of espionage are guaranteed to attract an audience, while agreeing to allow selected journalists privileged access has provided the agencies with an open channel through which to place material in the public domain. In an inquiry conducted by the Intelligence and Security Committee in 2004, it was revealed that a number of media outlets have journalists ‘accredited’ to the intelligence agencies, and receive briefings ‘about matters relevant to the Services.’ Indeed, the day after Mr. Parker’s appearance on the Today programme, newspaper reports based on ‘security sources’ confirmed the scale of the terrorist threat outlined by Parker, and added further details about the nature of that threat.

Avowable public statements, such as Parker’s radio appearance and the interview with the incoming head of GCHQ, Robert Hannigan, which appeared in the Financial Times earlier this year, are to be preferred to private briefings of carefully selected journalists. However, this interview, which included the customary question about James Bond, is just one form of scrutiny. There are some who would argue that if the agencies are serious about subjecting themselves to public scrutiny then they should be prepared to appear, in public, before parliamentary select committees. The carefully choreographed public appearance of intelligence agency heads before the Intelligence and Security Committee (ISC) last year was a welcome development, although it did not inspire confidence in the rigour of the ISC’s approach. It is to be hoped that further, and perhaps more challenging, public sessions will take place in the current parliament. However, a number of select committees including the Home Affairs Committee and the Joint Committee on Human Rights have had their requests to interview representatives of the intelligence agencies denied. These refusals seem less understandable in the context of media interviews with intelligence agency heads. When parliamentarians complain, as they often did in interviews for our research, that the intelligence agencies are not prepared to speak to parliament, they often add with some justification, ‘but they’re quite happy to talk to journalists.’

As has been widely reported, Mr Parker’s appearance on the Today programme was designed to make the case for intelligence agency powers in advance of the forthcoming Investigatory Powers Bill. The principal legislation governing the interception of communications, the Regulation of Investigatory Powers Act (RIPA) was passed in 2001, long before most of the current means of electronic communications were envisaged. Since the revelations of Edward Snowden, a series of legal challenges and inquiries have shed light on the extent to which the agencies have sought to stretch the interpretation of the existing legislation, while attempts to provide a new legislative framework have been piecemeal and far from successful. The Home Secretary’s attempt to bring forward a new and expansive Communications Data Bill, the so-called ‘snoopers’ charter’, stalled during the last Parliament when the Liberal Democrats withdrew their support. The Data Retention and Investigatory Powers Act, ‘emergency’ legislation introduced in July 2014 in response to a European Court of Justice ruling that the process whereby intelligence agencies’ required access to phone and internet records was incompatible with EU law, was itself ruled unlawful in July of this year in a case brought by the Labour MP, Tom Watson, and the Conservative MP, David Davis. In two recent landmark cases, the Investigatory Powers Tribunal ruled that the bulk collection of communications data had been unlawful up to December 2014 when the practice was revealed and that the communications of civil liberties groups including Amnesty International had been unlawfully intercepted. In June, a detailed review of investigatory powers, by the Government’s independent reviewer of terrorism legislation concluded that:

RIPA obscure since its inception, has been patched up so many times as to make it incomprehensible to all but a tiny band of initiates. A multitude of alternative powers, some of them without statutory safeguards, confuse the picture further. This state of affairs is undemocratic, unnecessary and – in the long run – intolerable.

The forthcoming legislation seems likely to put back onto a statutory footing activities which have recently been ruled unlawful. It is also likely to reform the regulatory framework under which the agencies operate, although whether it will take forward all of the innovative proposals for oversight made in the investigatory powers review remains to be seen.

To some extent Parker sought to respond to these difficulties by explaining the nature of the threat and the challenges facing the agencies in monitoring terrorist communications. While he refused to be drawn on the question of what new powers the intelligence agencies might want, he did make it clear that the agencies do not feel that the current arrangements provide them with all of the powers they need, noting that the agencies, ‘can no longer obtain under proper legal warrant the communications of people they believe to be terrorists.’

Moreover, while he repeatedly responded that it was ‘for parliament to decide’, it is important to remember that legislation will be tabled by the government not parliament, and we should not assume that Mr Parker’s reticence means the agencies do not have a view on this issue, or that they are not making their views forcefully known behind the scenes in Whitehall. Moreover, public interventions such as this are likely to be invoked and may well be persuasive when parliament comes to debate the issue. It will also be interesting to see, when the bill is introduced, whether the Home Secretary is more forthcoming about what the intelligence and security agencies have said to her about the powers they now need. If she does, then members might do well to remind her that when it comes to debating civil liberties the views of the public and their democratic representatives in parliament should weigh more heavily than those of the agencies authorised to spy on them.

There is a broad consensus on the need for new legislation. The government and the agencies would clearly like to have a new legal mandate for covert interception to enable the agencies to carry out the kind of surveillance which they clearly feel is necessary for the maintenance of national security, while civil liberties groups, and to some extent those responsible for overseeing the agencies, would like to see a new regulatory framework which plugs the gaps in the current arrangements. These two objectives are by no means mutually exclusive. Effective oversight can, indeed should, lead to more effective intelligence and a more secure society, in a way that simply deferring to the agencies will not. If this is to be achieved, Mr Parker and his successors will need to be subject to more frequent, rigorous and open scrutiny, and less questions about James Bond.

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Stalling in the Wilson Doctrine debate

A version of this post first appeared on The Conversation blog on 22 October 2015.


The so-called Wilson Doctrine, a parliamentary convention which has, for almost fifty years, protected the communications of parliamentarians from interception by the intelligence and security agencies is coming under increasing pressure. The convention was established in 1966 by the then Prime Minister, Harold Wilson, in response to growing parliamentary pressure to reveal whether the security services had been tapping MPs’ telephones. The Wilson Doctrine comprises two elements, the first and most widely known was Wilson’s assertion ‘that there was to be no tapping of the telephones of Members of Parliament.’ This was not, however, an unconditional assurance and the second crucial element of the Doctrine was Wilson’s statement 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… make a statement to the House about it.’

Every successive Prime Minister has expressed their Government’s commitment to the continued application of the Wilson Doctrine, and in several cases have expanded upon and clarified what the Doctrine means in the context of recent technological and legislative changes.

However, last week in a case brought by two parliamentarians from the Green Party, Caroline Lucas and Baroness Jenny Jones and the former MP, George Galloway, the Investigatory Powers Tribunal ruled that the doctrine has no basis in law. Concluding that there is no legislative provision which means that the communications of parliamentarians should be treated differently to those of any other citizen, the Tribunal dismissed Wilson’s statement as ‘a political statement in a political context’. Perhaps more damagingly the Tribunal also sought to argue that the Doctrine has little force as a parliamentary convention, arguing that there were so many caveats associated with it, that parliamentarians could have no ‘legitimate expectation’ that it would be enforced. The view that parliamentarians could not expect that a policy, repeatedly stated by successive Prime Ministers on the floor of the House of Commons, would in practice be applied, was viewed by many as somewhat surprising.

The Tribunal’s judgement prompted the Shadow Leader of the House, Chris Bryant, to call an emergency Commons debate this week, observing starkly of the Tribunal’s judgement, ‘to all intents and purposes, it means that the Wilson doctrine is dead.’

Monday’s emergency debate, therefore, provided the government with an opportunity either to kill off the Wilson Doctrine, something which was likely to generate considerable parliamentary opposition, or to explain how parliamentarians could continue to have confidence in the Doctrine in the light of the Tribunal’s judgement. In fact the Home Secretary did neither. Labour’s Chris Bryant and the Conservative MP, David Davis, repeatedly pressed the government to explain whether there had been a change in the general policy set out by Wilson and successive Prime Ministers and what this meant for the continued application of the Doctrine. In response the Home Secretary repeatedly stated that the Wilson Doctrine did not mean that parliamentarians were above the law, (something which no-one in the chamber had claimed), and that the government’s position was that Wilson Doctrine continues to apply. Despite the fact that, as Mr Bryant pointed out, evidence published by the Tribunal clearly indicated that there had been ‘changes in the Doctrine’, Mrs May retreated into the Ministerial comfort of refusing to comment on issues of national security even if those issues have already been made public elsewhere.

The Government’s position on the Wilson Doctrine is now hardly tenable. It appears to accept the Tribunal’s conclusion that parliamentarians cannot expect the Doctrine to be applied, but at the same time continues to claim that Doctrine does still apply. It is hard to avoid the conclusion that the Home Secretary’s response was simply a holding manoeuvre. The government will bring forward a new investigatory powers Bill in the coming month and the Home Secretary did reveal that there will be a significant period of consultation on the new Bill. The IPT judgement has changed the context in which that Bill will now be considered and there will be considerable pressure from both sides of the House to include some kind of exclusion for Parliamentary communications. If the government chooses to resist such pressure it will, nevertheless, need to provide significant clarification about the continued status of the Wilson Doctrine. Moreover, by highlighting the ambiguities and the limitations of the Wilson Doctrine, the Tribunal may well have helped to concentrate the minds of parliamentarians on the limited legislative protections which are offered to the rest of us.

 

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Is the Wilson Doctrine dead?

The judgement of the Investigatory Powers Tribunal (IPT) last week that the so-called Wilson Doctrine has no basis in law and that parliamentarians could not reasonably expect the Doctrine to be applied in practice, have raised further questions about the regulatory framework for intelligence oversight within the UK. The Wilson doctrine is a convention established by the then Prime Minister, Harold Wilson in 1966, when in response to a series of questions in the House of Commons, Wilson informed the House of Commons that ‘there is no tapping of the telephones of honourable Members, nor has there been since this Government came into office.’ He went on:

I reviewed the practice when we came to office and decided on balance—and the arguments were very fine—that the balance should be tipped the other way and 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. 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.

Five days later, in response to a question in the House of Lords, the Lord Privy Seal added that this policy also applied to members of the House of Lords.

Although successive Prime Ministers have all expressed their continued commitment to the Wilson Doctrine, the IPT’s judgment, in a case brought by two parliamentarians from the Green Party, Caroline Lucas and Baroness Jenny Jones and the former MP, George Galloway, raises significant questions over the continued application of the Doctrine. In a statement in the House of Commons on Thursday the Shadow Leader of the House, Chris Bryant, starkly observed, ‘to all intents and purposes, it means that the Wilson doctrine is dead.’

However, it is not clear that the Wilson Doctrine is quite dead, although the government may choose to kill it off in Monday’s scheduled debate on the subject. As the IPT made clear, the Doctrine has no basis in law. This is not surprising, previous legal interpretations, most notably that of the Interception of Communications Commissioner in 2006, on which the IPT drew have argued that the Doctrine not only has no legal force but that the notion that parliamentarians should be treated differently to other citizens offends legal principles. Moreover, there have been several opportunities for governments to place the Wilson Doctrine on the statute books with the passage of at least three substantive pieces of legislation in this area – the Interception of Communications Act, 1985, the Regulation of Investigatory Powers Act 2001, and the Data Retention and Investigatory Powers Act 2014 – yet none have taken the opportunity to turn the convention into law.

Nevertheless, the Wilson Doctrine does have the, perhaps dubious, force of a Parliamentary convention, and moreover one to which every Prime Minister since Wilson, including the current one, have restated their government’s commitment. Moreover, in doing so several have sought to expand upon and clarify how the Doctrine works in the context of recent technological and legislative changes. In particular, Tony Blair, in answer to a series of questions on the subject, stated in 1997 that the Wilson doctrine also applied to electronic communications, and later, perhaps exasperated by continued questions, that that ‘the policy refers to all forms of warranted interception of communications’.

In this context several aspects of the IPT’s judgment are a little surprising. Firstly, the Tribunal’s attempt to dismiss the Doctrine as ‘a political statement in a political context’, seems to rely too much on Wilson’s original statement and not enough on what has been said since. Whatever Wilson’s original intent the convention has been restated, interpreted and expanded on the floor of the House of Commons by subsequent governments of a range of political persuasions.  Secondly, the section of the judgment which may finally kill off the Wilson Doctrine, is the tribunal’s conclusion that despite all of this, parliamentarians could have no ‘legitimate expectation’ that the Doctrine would be enforced. The tribunal arrives at this conclusion on the basis that Wilson’s statement is sufficiently ambiguous as to make it meaningless. To some extent this is true, Wilson’s statement is ambiguous, not least with regard to when the Prime Minister would inform the House if the Doctrine had been set aside. It is also qualified in a number of respects, although many of these qualifications were made clear by Wilson and by subsequent governments. It is also clear that many parliamentarians and others have misunderstood the nature and the limitations of the Wilson Doctrine, although careful reading of the various statements on the subject may have helped them to avoid this. However, whether any of this is sufficient to arrive at the conclusion that parliamentarians could not have a legitimate expectation that a statement repeatedly made by the Prime Minister on the floor of the House of Commons would in practice be applied seems somewhat perverse.

What is clear is that the IPT judgement has changed the context in which the forthcoming investigatory powers bill will be considered. It now seems likely that there will be considerable pressure from both sides of the House to include some kind of exclusion for Parliamentary communications in the forthcoming legislation. Whether or not there is sufficient support for legislative change the Government will be forced to clarify the current status of the Wilson Doctrine. Moreover by highlighting the ambiguities and the limitations of the Wilson Doctrine, the IPT may well have helped to concentrate the minds of parliamentarians on the limited legislative protections which are offered to the rest of us.

 

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Too much continuity not much change: appointments to the Intelligence and Security Committee

DSCF1962Nominations to the new Intelligence and Security Committee have, somewhat belatedly,  been announced and approved by Parliament. This is the first time that membership of the ISC has been subject to parliamentary approval, although those nominated to serve on the committee are hand-picked by the Prime Minister in consultation with opposition leaders. The role of parliament is simply to approve or reject the PM’s nominations. Despite a belated attempt by the veteran Labour MP, David Winnick, to force a vote, nominations from the House of Commons were nodded through on Wednesday and those from the House of Lords are sure to follow a similar path.

This is an improvement on the previous arrangements, in which ISC members were simply appointed by the Prime Minister, however, only a little. Allowing parliament to approve membership is a step towards making the committee more independent, but there is a widespread perception in parliament and beyond that successive governments have ensured that those selected to serve on the ISC could be relied upon not just to preserve the secrecy of the committee but also to avoid challenging the agencies too rigorously. I noted in an earlier post that ‘changes to the process by which members of the ISC are selected are unlikely to enhance the credibility of the committee unless there are also changes to the kind of individuals nominated to serve on the committee.’ It is far from clear that those nominated to serve on the current committee mark a break with tradition.

The tendency to appoint ISC members with Ministerial experience, particularly in related areas has led to criticism that those on the committee are too close to the agencies and/or the executive. Twenty-three of the thirty-nine parliamentarians who have served on the previous five committees since 1994 have held ministerial office before being appointed to the committee, with a clear preference for members with ministerial experience in defence, foreign affairs and Northern Ireland. In addition appointments from the House of Lords have included individuals with direct experience of working with the intelligence agencies including a former diplomat, a retired Cabinet Secretary, and a former member of the Secret Intelligence Service.

Those nominated to the committee this week follow a similar pattern. Six of the nine committee members have previously held Ministerial office, although only one, Dominic Grieve, has been a Cabinet Minister, while the new Peer appointed to the committee is a former member of the Foreign Office.

However, in terms of previous experience of the committee this is the most inexperienced ISC since the first one was established in 1994. The ISC is reconstituted in each new parliament with a combination of new and experienced members. When the second committee was formed in 1997, the Labour government decided to retain the services of Tom King as chair in order to provide an important element of continuity. Barry Jones, Michael Mates and Alan Beith were also all retained from the first committee. Michael Mates served on three committees from 1994 t0 2005, and Alan Beith, the longest-serving ISC member to date, remained on the committee until midway through the 2010 parliament. Allowing members to remain on the committee for several terms is not unequivocally a good thing, but it does provide important institutional memory. In general at least three members have been retained after each general election.

Four members of the current committee have been retained from the previous parliament, although only two of those served for the whole parliament. The Labour MP, George Howarth is now the longest serving member of the current committee having served on the ISC through both the 2005-2010 and 2010-2015 parliaments. The other long-serving member of the committee, Michael Ancram, now the Marquess of Lothian, was appointed to the ISC in 2006 following the departure of James Arbuthnot, and has the singular distinction of having served on the committee as a member of the House of Commons and the House of Lords.

Two other members are retained from the previous committee but both were appointed towards the tail-end of the parliament. The Labour MP, Fiona Mactaggart replaced Paul Goggins who died in January 2014. She was the first member to be elected under the new system for selecting members of the ISC. The Conservative MP, Keith Simpson, was, somewhat bizarrely, nominated to the committee in March of this year, when the Conservative MP, Julian Lewis stepped down in the dying days of the last parliament. Although the committee had, by that point, effectively completed its business for the parliament, Mr Lewis somewhat presumptively observed, ‘when it was put to me that it would assist my right hon. Friend the Member for Broadland (Mr Simpson) to get his feet under the table, even for the last few days of this Parliament, I was only too happy to accommodate him.’ Given that the ISC announced in February that it had no further scheduled meeting before the election, it is possible that Mr Simpson has not yet attended a meeting of the committee.

Keith Simpson is a genial and intelligent MP. An accomplished military historian who has lectured at Sandhurst and Cranfield and a former PPS to William Hague, during his time as Foreign Secretary. His in-depth knowledge could be an asset to the committee. However, he is not, perhaps, the kind of MP to challenge the agencies too strongly and his presence on the committee is unlikely to convince those in parliament who feel that the ISC has been too quick to accept the agencies’ explanation of events.

The most interesting of the new appointments is Dominic Grieve.  Grieve, a former barrister, was Attorney General from 2010 until July 2014, a position which also gave him a seat on the National Security Council. Following his unwelcome departure from government he has been a vocal and intelligent critic of the Conservatives’ plans to replace the Human Rights Act. In 2014 he was awarded a lifetime achievement award by Liberty . It his hard to think of a more welcome addition to the committee from the Conservative benches. Given his experience and seniority Grieve is a likely candidate for chair of the committee. However, his nomination to the committee does perhaps reinforce the impression, which was allowed to develop under the previous Labour government, that membership of the ISC is compensation for those losing Ministerial office. Moreover, while his experience means that he is likely to play a central role in any investigation of intelligence-led drone strikes, his recent involvement in reviewing and perhaps approving such operations may well lead to accusations of conflict of interest.

Sir Alan Duncan, is another long-serving and highly able Conservative MP. He served as Minister for International Development in the last Parliament, leaving the government in the same reshuffle as Grieve – an unfortunate pattern. He is socially liberal and has a close interest in foreign affairs. Unusually for a prominent Conservative, he has publicly criticised Israeli settlements on Palestinian territory and the international arms trade. To what extent his previous posts have brought him into contact with British intelligence is not clear, but in 2010, drawing on the WikiLeaks cables, The Guardian reported that US intelligence had drafted a dossier on his political aspirations.

Unsurprisingly, there are now no Liberal Democrats on the committee, but the ISC does have its first SNP member, Angus Robertson, the MP for Moray. Robertson is a long-serving SNP MP with a long-standing interest in defence and foreign affairs, having been the SNP’s Westminster spokesperson on these issues since 2001. Robertson is perhaps most likely to offer a critical voice on the committee. He took a close interest in Britain’s involvement in the US rendition programme, providing a detailed dossier on suspect US flights through Scotland to Dick Marty, the Council of Europe’s special rapporteur looking at the role of European states in rendition. Robertson heralded his appointment to the ISC in this week’s Prime Minister’s Questions by asking about the role of the committee would play in investigating drone strikes.

The only new Labour member of the committee is Gisela Stuart, the MP for Edgbaston. Unusually for an ISC member, Stuart has not held a senior ministerial office, although she did serve as a junior health minister for two years at the end of the 1997-2001 parliament. She has, however, carved out a reputation as an expert on foreign affairs with long service on the select committees for foreign affairs (2001 – 2010) and defence (2010 to 2015). This will have brought some contact with the intelligence agencies, including briefings from agency heads. It would be welcome if she were able to encourage the ISC to liaise more closely and effectively with those parliamentary select committees with overlapping agendas.

Stuart and Fiona Mactaggart are the only women on the committee. A total of ten women have served on the ISC since it was first established in 1994 and thirty-four men. There have never been more than two women on the ISC at any one time and all of the women who have served on the committee have been Labour members. I have discussed this elsewhere, but it is a shame that another opportunity to provide some gender balance on the committee has been missed.

There are once again two Peers on the Committee. Although the ISC is by statute a joint committee of both Houses, the first four committees, from 1994 to 2010, had only one Peer on each. In 2010, two Peers were appointed to the committee, the Conservative Peer Lord Lothian and the crossbencher, Lord Butler. This did attract opposition from the Labour Party who objected to the presence of a crossbench Peer rather than a Labour Peer to balance the Conservative representation from the Upper House. Nevertheless, this precedent has been followed in the new committee. The Marquess of Lothian  remains on the committee and Lord Butler has been replaced by another crossbench Peer, Lord Janvrin.

Disquiet about Lord Butler’s appointment to the previous committee also reflected concern that, as a former Cabinet Secretary, he was perhaps too close to the agencies. In the course of our research one member of the previous committee observed that Lord Butler was just the kind of individual who should not serve on the ISC. Such concerns are unlikely to be alleviated greatly by the appointment of Lord Janvrin, who, if it is possible, could be described as even more of an ‘establishment’ figure than Lord Butler. Prior to his elevation to the House of Lords in 2007, Janvrin was Private Secretary to the Queen. However, it was probably his career in the Foreign Office in the 1970s and 80s which marked him out as a potential candidate for membership of the ISC. As is often the case with ISC members, his experience may be valuable, but his nomination is unlikely to persuade the sceptics that the ISC is embarking on a new period of penetrating and robust oversight.

Under arrangements introduced in the last Parliament, for the first time the chair of the ISC will be chosen by its members from the membership of the committee. There are a number of obvious candidates. As the longest-serving member and an opposition MP, George Howarth would be an appropriate choice. As would Lord Lothian, although the committee may wish to avoid selecting a chair from the House of Lords. Of the new appointees, Dominic Grieve and Alan Duncan are the obvious candidates. As the only former Cabinet Minister on the committee Grieve would seem to be in a stronger position, all but one of the previous six ISC chairs have been former Cabinet Ministers. Grieve might also be a popular choice from outside the committee.

One interesting break with tradition in relation to this round of ISC appointments is that, those who are not already members, have been appointed to the Privy Council. There is a widespread, but mistaken, assumption that membership of the ISC and the Privy Council go hand in hand. To be sure, membership of the Privy Council, and indeed the House of Lords, has often been a reward for service on the ISC, but it has not in the past been automatic. Michael Mates served on the ISC for ten years before becoming a Privy Counsellor. Julian Lewis, was made a member on his departure from the committee in March, others have served on the committee without becoming Privy Counsellors. It is not clear then why a change to this practice has occurred. It hardly seems likely, at this stage, that the Privy Council oath is deemed necessary to ensure the secrecy of the committee’s work. The Prime Minister, who has a penchant for distributing the baubles of state, may be seeking to enhance the status of the committee and perhaps makes membership more attractive. Ministers are fond of pointing out that the ISC is a ‘senior committee’ and this change may be designed to lend their reports the added authority of being produced by a committee of Privy Counsellors. Whatever the reason, with the exception of a short period in 2004 – 05, this will be the first time that the entire membership of the ISC are Privy Counsellors.

Despite some significant changes to the process of appointing members, and while there have clearly been some interesting appointments this time around, it is hard to avoid the conclusion that, with the possible exception of Angus Robertson, those nominated to serve on the ISC are exactly the kind of MPs and Peers one would expect to be nominated to serve on the ISC. Of course the new committee should be judged on its work, and not its membership, but as the previous chair, Malcolm Rifkind observed at the beginning of the last parliament, it is not sufficient for the ISC to be independent it must also be perceived to be independent ‘both by Parliament and the public.’ Consequently, public and parliamentary perceptions about the kind of people selected to serve on the committee do matter. Unfortunately, it is far from clear that those appointed to the committee this week will inspire any more confidence than their predecessors.

 

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