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SPOOKS have changed top-secret rules so they are free to spy on MSPs, the Daily Record can exclusively reveal today.

Explosive documents show that the UK’s electronic eavesdropping agency last month dumped guidelines which had constrained spies from tapping MSPs’ phones or hacking their emails.

The revelations about GCHQ will spark fury at Holyrood and reignite conspiracy theories about the role of the security services in fighting the growth of pro-independence feeling.

They are also likely to bolster fears the intelligence community were monitoring politicians’ and activists’ communications during the referendum campaign.

The fact that the change to existing guidelines was made in the aftermath of the September 18 vote might be viewed as an action taken to cover previous activities.

Internal policy documents obtained by the Record show GCHQ – responsible for mass surveillance in Britain – had extended the decades-old Wilson doctrine to MSPs until March of this year.

The convention is named after former prime minister Harold Wilson, who pledged in 1966 that MPs’ and peers’ phones would not be tapped.

In December 1997, then PM Tony Blair said it extended to electronic communication, including emails.

However, the policy was never officially extended to cover the devolved parliaments in Scotland, Wales and Northern Ireland once they were set up in 1999.

And while GCHQ voluntarily treated MSPs in the same way as MPs until March this year, it can be revealed that they have now changed the policy so MSPs are no longer included.

In 2013, the late independent MSP Margo MacDonald asked the head of MI5 for assurances that the UK security services would stay out of the Scottish independence referendum.

It is not known what response she received but in an interview at the time, she said she believed the SNP and the Yes campaign had been infiltrated by the intelligence services.

Details of how the UK spooks are free to spy on MSPs emerged as the UK’s most secretive court began a rare public hearing.

It will examine what legal protections are in place to stop interception of elected politicians' communications by the intelligence community.

The hearing of the Investigatory Powers Tribunal in London confirmed the emails and phone calls of MPs and members of the Lords should be protected by Wilson.

But MSPs – along with members of other devolved assemblies and the European Parliament – have no legal protection.

Before March, official guidelines to GCHQ staff said: “As a matter of policy, GCHQ applies the principles of the Wilson doctrine to Members of the House of Commons, Members of the House of Lords, UK MEPs, and Members of the Scottish, Welsh and Northern Irish Assemblies.”

(Image: AFP)

But new guidelines issued last month simply state: “The doctrine does not apply to .... the interception of communications of Members of the European Parliament or devolved assemblies.”

In their analysis of the documents, lawyers Ben Jaffey and Jude Bunting said: “All protection for devolved legislators has been removed.”

The pair are representing Green Party politicians Caroline Lucas and Lady Jones, who claim disclosures by whistleblower Edward Snowden made it clear GCHQ were capturing their communications – in breach of Wilson.

Former Glasgow MP George Galloway was also in court yesterday after filing a separate case which was incorporated with that of Lucas and Jones.

The lawyers argue the UK’s intelligence agencies have been operating unlawful surveillance policies that fail to adequately protect the confidential communications of MPs.

It was revealed MI5, MI6 and GCHQ have operated under eight different policies in the last year alone, most of which appear not to follow Wilson.

Only GCHQ ever offered any form of protection to MSPs, with M15 and MI6 never recognising their position as elected politicians.

The documents show MI5 had one policy on interception of parliamentarians’ communications from April 2012 to September 2014, when it was rewritten after Lucas and Jones lodged their challenge.

It was rewritten again last February after government lawyers drafted their “open response” – or non-secret defence – to the claim.

Former foreign secretary David Miliband rubber-stamped an MI6 policy in February 2008 which allowed the agency to intercept parliamentarians’ communications without the prime minister being notified.This was rewritten last February, bringing it in line with MI5.

Jaffey said the various policies “fail fully to comply with the law and fail to comply with public statements as to safeguards”.

But he confirmed that his clients are not arguing that MPs and members of the Lords should never have their communications intercepted – as there may be exceptional national security grounds for doing so.

But he added: “Strict safeguards to protect parliamentary communications are an important bulwark for the protection of the public interest.”

Some elements of the Government’s defence against the legal challenge are being kept secret and the tribunal are likely to exclude the public and media if they come to consider evidence of actual surveillance of MPs and peers.

The case continues today.