The Investigatory Powers (Amendment) Bill was introduced into Parliament before Christmas, starting in the House of Lords, to which it will shortly return for consideration of Commons amendments. Generally, the progress of the Bill, much of which implements recommendations made by Lord Anderson of Ipswich in his review of the Investigatory Powers Act 2016 of June 2023, has been smooth. This post considers an issue which has been the focus of a large portion of the attention the Bill has received during the Parliamentary process – the change being made to the law permitting the surveillance of parliamentarians – and the logic it might be thought to reflect.

The historic position

The practice of the interception of communications found a clear legal basis only in 1985, when legislation was enacted to address the gap in the law identified by the European Court of Human Rights in Malone v United Kingdom. The specific issue of the interception of Parliamentarians’ communications was not addressed by the statute in question, the Interception of Communications Act 1985, nor by its successor, the Regulation of Investigatory Powers Act 2000. Historically the matter was governed, as far as MPs were concerned, by the ‘Wilson doctrine’, first articulated in 1966, in response to a question which noted that some of Harold Wilson’s comments in the House of Commons implied that there had in the past been tapping of MPs’ telephones. There was no obstruction to doing so: the Birkett Committee had observed in 1957 that – so far as it could 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.’ Wilson, answering, noted that he bore ‘no responsibility for what was done in this matter before the present Government came to power’ but effectively confirmed the implication by stating that his government had decided that it should not continue:

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. 

Very shortly thereafter, it was confirmed that this policy applied also to members of the House of Lords. The development of the so-called ‘doctrine’ over time is however ambiguous. Wilson said, on announcing it, that if ‘there was any development of a kind which required a change of policy, I would, at such a moment as seemed compatible with the security of the country, on my own initiative make a statement in the House about it’, a form of words which seems obviously compatible with a situation in which there was a temporal gap – perhaps a very considerable one – between the abandonment of the substantive policy and the communication of that fact being made to Parliament. And in 2014 the Home Secretary, Theresa May, suggested in Parliament that the position was rather different than had generally been understood. The doctrine, she said:

does not absolutely exclude the use of these powers against parliamentarians, but it sets certain requirements for those powers to be used in relation to a parliamentarian. It is not the case that parliamentarians are excluded and nobody else in the country is, but there is a certain set of rules and protocols that have to be met if there is a requirement to use any of these powers against a parliamentarian.

The doctrine had previously been subject to very substantial criticism by the Interception of Communications Commissioner, Sir Swinton Thomas, on two grounds. One was a question of principle: the doctrine meant that ‘MPs and Peers are anything but equal with the rest of the citizens of this country and are above the law.’ The other was pragmatic: the doctrine meant that ‘MPs and Peers can engage in serious crime or terrorism without running the risk of being investigated in the same way as any other member of the public.’ A case decided by the Investigatory Powers Tribunal in 2015 confirmed not only that the Wilson doctrine had no legal effect, but also that it did not apply to the granting of ‘bulk’ interception warrants (then under the Regulation of Investigatory Powers Act 2000) and did not create a substantive legitimate expectation on the part of Parliamentarians. 

The ‘triple-lock’

The Investigatory Powers Act 2016 dealt with the matter by providing that a targeted interception warrant (one permitting the interception of a specific person or persons) or a targeted examination warrant (one permitting the searching of data acquired via the bulk interception of communications for the communications of a specific person or persons) are subject in certain circumstances to additional safeguards over and above those which otherwise apply. Ordinary such warrants are subject to the so-called ‘double-lock’: the initial decision of the Secretary of State that the criteria for the granting of a warrant are met must be approved (except in cases of urgency) by a Judicial Commissioner – someone who is or has been a senior judge. Where the target of the interception or examination warrant is communications sent by, or intended for, a member of a relevant legislature, however, an additional hurdle applies. The hurdle in question is that the Secretary of State may not issue the warrant without the approval of the Prime Minister. In the context of the communications of Parliamentarians, therefore, the double-lock becomes a triple-lock. For the purposes of this rule, the Parliamentarians whose communications are protected include members of either House of Parliament as well as members of the three devolved legislatures; members of the European Parliament for the United Kingdom also enjoyed the protection of the triple-lock prior to Brexit. It also applies to the equivalent powers to carry out ‘equipment interference’ (more usually known as ‘hacking’) under the 2016 Act.

Lord Anderson noted in his review that when the Prime Minister, Boris Johnson, was hospitalised with Covid in 2020, one result was to deny access to the triple-lock process: there was no provision made within the 2016 Act for the delegation of this function, even if the Prime Minister were well enough to make the decision to delegate and complete any relevant formalities. Lord Anderson therefore recommended that the law be amended so as to permit the use of a deputy when the Prime Minister is unable to do so, ‘in particular’, he said, ‘through incapacity, conflict of interest or inability to communicate securely.’ The first and third of these possibilities are largely self-explanatory, if no doubt exceptional. The second is less so. What might it mean for a Prime Minister, required to approve the interception of the communications of a Parliamentarian in accordance with the triple-lock, to be unable to do so by reason of conflict of interest? 

One possibility is that the Parliamentarian in question, the person whose communications the security and intelligence agencies wish to intercept, might be a member of the same party as the Prime Minister – the party of which the Prime Minister is the leader. This though would seem too broad, encompassing in ordinary times a majority of those sitting in the House of Commons. Other possibilities seem more compelling. Remember that the triple-lock extends to members of the House of Lords. It has been reported in the past that the security and intelligence agencies warned against the granting of a Peerage to an individual who had been nominated by Boris Johnson as Prime Minister, but that the appointment went ahead nevertheless. It has even been reported that unspecified ‘officials’ contacted Buckingham Palace with a view to having the late Queen block that nomination. If the agencies desired to intercept that person’s communications once he took up his seat in the Lords, would Johnson therefore have had a conflict of interest of the sort that might have made it desirable to take the warrant elsewhere for the third key to be turned?

Other possible sources of a conflict of interest might be imagined, including where the person to be targeted was not merely a Member of Parliament but also a Minister of the Crown. Though Ministers are – quite rightly – not subject to security vetting, it was once said by the Security Commission that ‘effective arrangements exist for drawing to the attention of the Prime Minister of the day any relevant security information which may have reached the Security Service about those whom he is likely to wish to appoint to Ministerial office’ and that ‘the Government Chief Whip of the day can be expected to be very well informed about any member of either House of Parliament who is a potential candidate for Ministerial office’. This, of course, will not help us if the ‘relevant security information’ relates to the Prime Minister him or herself, and if the agencies wish to intercept or examine his or her communications, that would count as the ultimate conflict of interest for the purpose of the triple-lock.

The Investigatory Powers (Amendment) Bill

When the Investigatory Powers (Amendment) Bill was introduced into the House of Lords, however, the provision amending the triple-lock referred only to the Prime Minister being ‘unavailable’, with no further elaboration or qualification. It would, in its original form, permit the turning of the third key in the lock by a Secretary of State designated in advance by the Prime Minister, though only where two conditions were met. One, the Prime Minister was ‘unavailable to decide whether to give approval’. Two, the Secretary of State or a ‘senior official’ considered that ‘there is an urgent need for the decision (as to whether to give such approval) to be made.’ Notably, perhaps, there was no obligation within this clause for the Prime Minister to designate a Secretary of State who would be able to perform his or her function in his stead. Nor was there any elaboration of what it might mean for the Prime Minister to be ‘unavailable’. The implications of that term were probed in a letter from Baroness Drake, Chair of the House of Lords Constitution Committee, to the Minister in charge of the Bill. In particular, Baroness Drake asked, did the term encompass a situation in which the Prime Minister has a conflict of interest, as Lord Anderson had suggested it should? No, came the answer: ‘We do not intend for unavailable to extend to conflict of interest, as from a constitutional perspective the Prime Minister can be technically said to be able to carry out their duties in this scenario.’ The implications of this picture were considered by Lord Anderson himself at Report stage, noting that:

The triple-lock was designed to ensure that the communications of parliamentarians could be intercepted only with the consent of the Prime Minister. It was not designed to give the Prime Minister himself an effective veto over the interception of his own communications. Immunities or quasi-immunities of that kind might have their place in some presidential systems, but they seem out of place in a parliamentary system in which the Prime Minister is primus inter pares. However, just such an immunity is perpetuated by [the relevant clause] …

A number of amendments to this picture were therefore proposed at various points in the legislative process. These included, for example, attempts to require that any Parliamentarian targeted in exercise of the powers be notified of that fact after the surveillance was completed; attempts to require that the Prime Minister be informed of any warrants of this type he or she was not involved in granting; and attempts to require that the Investigatory Powers Commissioner include in his annual report details of how many warrants were issued in exercise of these powers. Perhaps most significantly, they included attempts to substitute the language of ‘unable’ for the Bill’s ‘unavailable’, specifically so as to deal with the conflict-of-interest point. The only amendments which were accepted by the Government in the Lords, however, were proposed by Lord West of Spithead, a member of the Intelligence and Security Committee. Though one of these substitutes into the Bill the language of ‘unable’, it does so while specifying that such inability is relevant only where ‘due to incapacity or inability to access secure communications’ – conflicts of interest are not covered. The others limit the number of Ministers to whom the Prime Minister’s role within the triple-lock might be delegated and limit the category of those to whom it might be delegated to that of Ministers who are ‘required in their routine duties’ to issue warrants of the relevant type. In the Commons this latter provision became a reference to Ministers who have the ‘necessary operational awareness to decide whether to give approvals’. The Bill passed the Commons without further amendment to this position: it remains the case that there is no obligation to designate Secretaries of State to substitute for the Prime Minister within the triple-lock.

Foreign interference

Many of those who spoke to the issue in Parliament have emphasised that the surveillance of Parliamentarians should be carried out only where absolutely necessary, given that it represents a rather clear interference with the democratic process. It is therefore worth considering how and why this question arises. I quoted above Sir Swinton Thomas’ view that the Wilson doctrine meant that MPs or Peers might participate in ‘serious crime or terrorism without running the risk of being investigated in the same way as any other member of the public’. It seems unlikely, however, that serious crime or terrorism are the key fears at this point in time. As I have recently suggested, we appear to be in the process of a return to a state of affairs in which the most important threat to national security is understood to be not terrorism – international or domestic – but rather that posed by hostile states. In particular, the United Kingdom – like Australia and Canada – appears to be a target for what is usually now described as ‘foreign interference’, whereby hostile states seek ­clandestinely to influence the functioning of the democratic process through financial or other means. It is to this threat that the National Security Act 2023 seeks to respond, not only via a suite of criminal offences – including an offence of ‘foreign interference’ – but also via the creation of a Foreign Influence Registration Scheme which will seek to bring attempts by foreign states to influence the UK political process out into the open. Foreign interference, then, is not understood to be a threat to national security which involves the political process, and those who work within it, only exceptionally and contingently, but rather one which is in fact in many ways inseparable from that process and those people. It is hardly then surprising that it is against this background that the question of intercepting Parliamentarians’ communications has become live once more, and some will no doubt regret that the question of conflicts of interest arising out of the Prime Minister’s role in the triple-lock was not pursued to a different conclusion, but rather – to quote Lord Anderson again – put in a box marked ‘too difficult’.

Paul Scott teaches at the University of Glasgow.

(Suggested citation: P. Scott, ‘Spying on Parliamentarians’, U.K. Const. L. Blog (17th April 2024) (available at https://ukconstitutionallaw.org/)