Stalling in the Wilson Doctrine debate

Posted on October 29, 2015 by Andrew Defty

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?

Posted on October 19, 2015 by Andrew Defty

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

Posted on September 11, 2015 by Andrew Defty

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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The Wilson doctrine: tapping the telephones of members of parliament

Posted on July 23, 2015 by Andrew Defty

IMG_1997The Investigatory Powers Tribunal will today consider the legality of a convention whereby the communications of parliamentarians may not be subject to interception by the intelligence agencies. In a case brought by the Green MP, Caroline Lucas, the Peer, Jenny Jones, and the former MP, George Galloway, the tribunal will test the strength and legality of the so-called Wilson doctrine.

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.

Successive Prime Ministers have all expressed their continued commitment to the Wilson Doctrine. Moreover, it is apparent that the scope of the convention has expanded in recent years. Developments in communications technology have prompted a series of parliamentary questions about the scope of the doctrine. In 1997, Tony Blair stated that the Wilson doctrine also applied to electronic communications, and then in 2002, perhaps exasperated by continued questions on the subject, stated that that ‘the policy refers to all forms of warranted interception of communications’.

The principle which underpins the Wilson doctrine is that MPs’ communications should be treated differently to those of ordinary members of the public. It is based in part on the notion of parliamentary privilege which protects MPs and Peers from prosecution for anything they might say as part of the proceedings of Parliament or any of its committees, and also allows each House the freedom to regulate its own affairs. However, it is not clear to what extent this encompasses all communications entered into by members of Parliament, and also how this relates to subsequent legislation on the operation of the intelligence agencies, which makes no mention of the Wilson doctrine. In the tribunal’s considerations much may hang on its understanding of what constitutes parliamentary proceedings. However, as the Wilson doctrine has no basis in law it may also decide that it is something on which is it not prepared to pass judgement.

Prior to Wilson’s statement the assumption was that the communications of parliamentarians were not treated any differently to those of other members of the public. In 1957 a committee of inquiry into the interception of communications concluded that:

So far as we can determine, a Member of Parliament is in exactly the same position as any private citizen in regard to the interception of his communications unless those communications were held to be connected with a proceeding in Parliament.

The committee struggled to define what might be constitute communications connected to a proceeding in Parliament, but assumed a rather limited approach providing the example of a telephone call relating to an intended parliamentary question. In 2005 the Blair government considered rescinding the Wilson doctrine on the grounds that with legislation in place to authorise and oversee the interception of communications it was no longer necessary to rely on such a convention. Blair was supported in this by the Interception of Communications Commissioner who argued that the Wilson doctrine flew in the face of the constitution by assuming that MPs’ should be treated differently to other citizens. However, in the face of considerable disquiet in Parliament, including within his own Cabinet, Blair dropped the idea.

There is a widespread assumption that the doctrine provides for a blanket ban on intercepting the communications of parliamentarians. There are however, a number of important caveats to the Wilson doctrine and it is quite clear that MPs’ communications have been intercepted since Wilson made his statement. Firstly, Wilson’s statement does not preclude the interception of parliamentary communications it simply states that if interception takes place Parliament would be informed at some point. This highlights a fundamental contradiction at the heart of the Wilson doctrine, which is that whilst it is designed to protect the communications of Members of Parliament, it may at any point be in abeyance, with it simply being the case that parliament has not yet been informed. Indeed, the carefully worded statements of successive Prime Ministers’ in relation to the Wilson Doctrine do not indicate that the communications of parliamentarians are not being intercepted, but merely that if they are, it is with the Prime Minister’s approval and Parliament has not yet been made aware. Former Ministers interviewed for our research argued that the Wilson doctrine merely set a higher bar for the authorisation of interception which means that warrants to intercept the communications of parliamentarians will be subject to much closer scrutiny than other warrants, and are likely to authorised by the Prime Minister.

Moreover, it is far from clear that the interception of communications in particular cases would involve a setting aside of the Wilson doctrine requiring parliament to be informed at all. It could be argued that the general policy remains that the communications of parliamentarians will not be intercepted while in particular cases, and with the correct authorisation, they may be. In the same way that in general the communications of members of the public will not be intercepted, but that in specific cases and with the correct authorisation, they may be. This does, of course, raise the question of whether the Wilson doctrine provides any protection not afforded to ordinary members of the public. What may make a difference in the current case, particularly in the light of recent revelations about the collection of communications data, is if it can be shown that parliamentarians’ communications have been intercepted as part of a general trawling of communications data. Although this, of course, may be hard to prove.

While the Wilson doctrine may have expanded to encompass new communications there are also a number of other limitations to its application. It is a privilege which does not apply to members of other legislative assemblies such as the Scottish Parliament, the Welsh Assembly or the Northern Ireland Assembly. Moreover, it only applies to interception by the intelligence agencies. Since Wilson made his statement there has been a significant  expansion in the use of interception by other agencies, most notably the police. When meetings between the Labour MP, Sadiq Khan, and a constituent in Woodhill Prison were covertly monitored in 2006, this was not considered a breach of the Wilson doctrine on the grounds that the interception was instigated and carried out by the police rather than the intelligence and security agencies, and had not therefore been subject to Ministerial authorisation.

All of which raises the question of whether the Wilson doctrine has any real meaning at all. The practice as set out by Wilson allowed for it to be set aside at any time, and only required the Prime Minister to reveal this to Parliament at some point. The communications of some parliamentarians have certainly been intercepted at various points since 1966. The monitoring of the communications of Sinn Fein Members of Parliament in the 1990s is an open secret, but are not the only examples. However, while it is quite possible that the Wilson Doctrine has been routinely set aside in a number of particular cases for some time, and that successive Prime Ministers have not felt able to reveal this to Parliament, this would arguably be in keeping with Wilson’s commitment, and would not contradict the assurances of successive Prime Ministers that the doctrine remains in force. At the same time, a significant growth in the number of government agencies now able to carry out surveillance, and particularly the expansion of covert surveillance by the police, means that the Wilson Doctrine provides only partial protection to the communications of parliamentarians and may, either by accident on design, be circumvented. Finally, questions remain about whether parliamentarians should be treated differently to other members of the public in this respect, and if so whether this should be extended to members of other legislative chambers. If this is to be the case then legislation would provide greater protection than a caveat-laden convention enunciated on the floor of the House of Commons.

This post draws on the article ‘Tapping the telephones of Members of Parliament: the ‘Wilson doctrine’ and Parliamentary Privilege’ by Andrew Defty, Hugh Bochel and Jane Kirkpatrick which was published in the journal, Intelligence and National Security, vol. 29, no. 5 (October 2014), pp.675-697. The article contains much more on the background and operation of the Wilson doctrine, including analysis of cases involving Sinn Fein MPs and the Labour MP, Sadiq Khan. We also submitted evidence in relation to the Wilson doctrine to the government’s 2012 consultation on parliamentary privilege.

 

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Where is the Intelligence and Security Committee?

Posted on July 20, 2015 by Andrew Defty

It is more than two months since the general election and new Intelligence and Security Committee (ISC) has yet to be appointed. The delay in appointing the new committee is beginning to raise eyebrows, and questions, in Parliament and beyond. Two weeks ago, Fiona Mactaggart, who served on the ISC in the last Parliament asked the Leader of the House, Chris Grayling, whether the membership might be finalised so that the committee could meet before the summer recess. His reply that it was his ‘hope and expectation that that would happen as soon as possible, and hopefully before the summer recess’, does not inspire confidence.

It is not entirely clear why the appointment of a new committee is taking so long, but the process of appointing ISC members changed in the last Parliament, and it also appears to have become bound up with the appointment of select committees which has preoccupied Parliament in recent weeks. Since the election a short note on the ISC website has noted that:

…following the 2015 General Election, Parliament has yet to appoint Members to the ISC.  It is expected that this will occur in a similar time frame to, or shortly after, appointments have been made to Departmental Select Committees in the House of Commons.

During the last Parliament changes were made to the process for appointing members of the ISC. In the past, the committee and its Chair were appointed by the Prime Minister, after consultation with opposition leaders, shortly after each general election. Under changes introduced in the Justice and Security Act 2013, members are now appointed by Parliament. However, unlike select committee members who are elected from the whole House, members of the ISC must first be nominated by the Prime Minister, after which Parliament approves their membership. Although this process was followed for the appointment of two new members in the last Parliament, this will be the first time that Parliament has been asked to approve the whole committee, and the first time that the ISC has selected its own Chair.

The process to some extent mirrors that for appointing members of parliamentary select committees, which was also modified in the last Parliament, so that select committee Chairs are elected by a secret ballot of all MPs, while individual parties must now hold elections for their allocation of select committee members. Although both processes are part of a shift towards giving Parliament more say over the composition of its committees, the different approaches reflect the Government’s (and perhaps the agencies) desire to retain some control over appointments to the ISC.

The distinction between the ISC and the parliamentary select committees is also reflected in the timing of appointments to the committee. While parliament has spent much of the last month finalizing the membership of select committees, it is clear that the Government has decided that appointments to the ISC should wait until that process is over. There may be good reasons for this. The government would not want to be seen to deny select committees access to some MPs by effectively having first choice of MPs for membership of the ISC. Something which might also lead to parliament vetoing ISC members if it was felt their talents would be better placed elsewhere. It also means that MPs who are unsuccessful in seeking appointment to a select committee can still find a role on the Intelligence and Security Committee.

However, the situation is somewhat unsatisfactory, for a number of reasons. By delaying appointments to the ISC until after the appointment of select committees there is a risk that the ISC is viewed, in Parliament and beyond, as a second tier committee, less important than other parliamentary committees. As a result of the tendency to appoint former Ministers to the ISC, membership of the committee has in past, rightly or wrongly, acquired the reputation of being a compensation for departing Ministers. It would be regrettable if as a result of the current arrangements, the ISC were now viewed as comprising members who were unsuccessful in securing select committee membership.

There may also be more pressing reasons why a new Intelligence and Security Committee should be in place soon. As the committee has itself observed, intelligence is an area in which few parliamentarians have much experience and membership of the ISC comes with a steep learning curve. For this reason, following each election the newly appointed ISC has usually comprised a combination of new and existing members. With the departure from Parliament of three members of the previous committee including its Chair, and the resignation of a fourth shortly before the general election, at least four of the nine members of the ISC will be new appointees. There will be much to learn not least about the way in which the committee operates, before the serious business of intelligence oversight can begin in earnest.

The relative inexperience of the new committee may be compounded by the need to hit the ground running. As is clear from the reported cases of UK citizens travelling to Syria to fight with ISIS and the recent terrorist attack in Tunisia, the UK is facing an ongoing terrorist threat with significant implications for the work of the intelligence and security agencies. Yet there is, at present, no parliamentary oversight committee in place to assess the agencies’ capacity to meet that threat. This is not the first time that this has been the case. Delays in making appointments to the ISC have, in the past, left the committee struggling to keep up with events. Most notably following the 2005 general election when a new committee was not appointed until the 12th July, several days after the 7/7 terrorist attacks in London.

The situation has been made worse this year because it appears that the previous ISC effectively stopped working in February. On 24th February, Sir Malcolm Rifkind resigned as Chair of the ISC, following ‘cash for access’ allegations arising from an investigation conducted by The Daily Telegraph and Channel 4. On the same day, in what might be viewed as a fit of pique, the ISC issued a statement that as there were ‘no further formal meetings scheduled before the prorogation of Parliament’, it would not be appointing a new Chair. Although the ISC published two reports after this date, both of these were completed before Sir Malcolm’s resignation, and it is far from clear that the committee has met at all since that date. The committee’s press releases certainly suggested it was not intending to.

This in itself is somewhat unsatisfactory. ISC members frequently claim that the committee is one of the hardest working parliamentary committees. It meets on a weekly basis when Parliament is sitting. In addition to its set-piece inquiries such as those published towards the end of the last Parliament, it also oversees the administration, expenditure and policy, and since reforms introduced in 2013, the operations, of the three intelligence and security agencies and the wider intelligence community. While the publication of its Privacy and Security report marked the end of a significant and to some extent ground-breaking inquiry for the ISC, it seems odd that the committee would decide that it had no further work to do for the remainder of the Parliament. While the ISC does not comment on every intelligence issue which comes to public attention, ISC members claim that it keeps a watching brief on what is going on and any significant intelligence issue which attracts the attention of the public and the media, and many which do not, are subject to scrutiny by the committee.

More significantly, the ISC does have unfinished business. In December 2013 the Prime Minister asked the ISC to pick up the work of the so-called Detainee Inquiry, chaired by the retired judge, Sir Peter Gibson, into whether Britain was implicated in the ill-treatment of detainees by other countries. In response to this additional work-load the committee requested, and received, additional resources to enable it to continue the work of the detainee inquiry alongside its other inquiries into the murder of Fusilier Lee Rigby and the Privacy and Security inquiry. While the latter two inquiries were completed in the last Parliament the detainee inquiry remains in the ISC in-tray. Therefore, far from reaching the end of its work in February 2015 the ISC had at least one on-going inquiry. It is disappointing that this was not scheduled for consideration in the remaining weeks at the end of the last Parliament, and that the time taken to appoint the new committee has delayed it further.

There may, of course, be a number of reasonable explanations as to why the ISC has not yet been appointed and it may also be the case that the committee was not in a position to make progress with the detainee inquiry at this time. Nevertheless, the very existence of a parliamentary intelligence oversight committee which meets on a regular basis and which may at any point seek explanation or clarification about the conduct of the intelligence and security agencies is central to providing democratic legitimacy to the agencies and the government’s use of covert powers. The government’s tardiness in seeking to appoint a new Intelligence and Security Committee threatens to undermine the capacity and credibility of the new ISC before it has even begun its work. Insofar as the role of the committee is to monitor the effectiveness of Britain’s intelligence and security agencies it may even be damaging to national security.

This was first posted on the Democratic Audit blog on 15th July 2015.

 

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