International Law

Home Secretary Jacqui Smith's statement on the Wilson Doctrine

Home Secretary Jacqui Smith made a statement about the report of the Chief Surveillance Commissioner Sir Christopher Rose on the bugging scandal in HMP Woodhill, involving Sadiq Khan MP, Babar Ahmad (see the previous blog article) and also on the Wilson Doctrine and Legally Privileged conversations etc.

Without extending the Wilson Doctrine, she did make a promise to amend the existing Statutory Codes of Practice regarding Covert Surveillance, extending these to cover Members of the European Parliament and the Welsh Assembly (not Northern Ireland or Scotland where these are Devolved Matters). The policy regarding unelected Members of the House of Lords is now unclear.

See Commons Hansard 21 Feb 2008 : Column 536

The House will be aware that the 2000 Act also covers the interception of communications. That is a power that can only ever be used for limited purposes, and requires in each case the explicit prior authorisation of a Secretary of State. It is to interception, and to other surveillance requiring the approval of a Secretary of State, that the Wilson doctrine applies. Sir Christopher makes it clear that

?the surveillance which I am investigating does not appear to me to be within the Wilson Doctrine, because it does not give rise to interception as defined by the legislation, nor would it require authorisation by the Secretary of State.?

This is in line with the Government?s stated position on the doctrine. As the facts set out in Sir Christopher?s report make clear, it is not relevant in this case.

However she went on to say

I referred earlier to the Wilson doctrine. Although that does not apply in this case, Sir Christopher does suggest that there is some scope for confusion as to the correct interrelationship between the Wilson doctrine and the legislation. The Government do not propose to amend the Wilson doctrine, but accept that current codes of practice do not fully clarify the extent to which reviewing officers and authorising officers should pay special attention to conversations involving or potentially involving a Member of Parliament. I am therefore announcing today that the Government will review the statutory codes of practice, and in particular that we intend to clarify that, as regards covert surveillance, conversations between Members of Parliament doing their constituency business and their constituents should be considered as ?confidential information?, and treated in the same way as other confidential information, such as conversations between a person and their lawyer or minister of religion. That will more clearly give such conversations additional protection.

We think that this "confidential information" also applies to medical conversations between a doctor and patient, and if it does not, then it should.

What about confidential journalistic information and sources, of which there is some mention in the Codes of Practice ? That must also be clarified in any review.

Presumably the Home Secretary Jacqui Smith intends to amend this Statutory Code of Practice: Covert Surveillance - Code of Practice, Pursuant to section 71 of the Regulation of Investigatory Powers Act 2000 (.pdf 58 pages), particularly "Chapter 3 Special rules on authorisations" and "Annex A Authorisation levels when knowledge of confidential information is likely to be acquired". This Code of Practice also applies to the Police Act 1997 Part III

What about the Codes of Practice for Communications Traffic Data (RIPA Part I Chapter II) and for access to Encryption Keys and Data (RIPA Part III) ? These can also impinge on confidential constituency business.

A few annotations on the debate about this Statement, during which Jacqui Smith made further promises:

Full post as published by Spy Blog on February 24, 2008 (boomark / email).