The Investigatory Powers Bill (IPB) has its second reading in the House of Commons today. Although there is much high level resistance to the Bill, relatively little of it has focussed on the impact on the media.
The backdrop of the Bill is the need for wholescale reform of investigatory powers in the wake of the Snowden revelations about the extent and manner of bulk data gathering and interception methods. Of particular relevance for the media was the emergence of the use of RIPA powers against journalists to identify sources, thereby bypassing cherished judicial safeguards in PACE and the Terrorism Act, for example.
That disclosure resulted in a highly critical IOCCO Report last year which recommended that judicial authorisation be obtained in all cases where communications data is sought to determine the source of journalistic information. The Report triggered a flurry of temporary legislative measures including a revised Home Office Code which required that when certain law enforcement agencies (police, HMRC etc.) sought communications data in order to identify a journalist’s source they should use PACE rather than RIPA pending the enactment of new legislation. The Sun also brought a partly successful action in the Investigatory Powers Tribunal which held that some of the police use of RIPA against its journalists in the Plebgate was unlawful.
During the passage of RIPA, Article 10 rights were hardly considered at all. That has not been the case with the IPB, which explicitly recognises journalistic rights, but the resulting protections are woefully inadequate. That is particularly unsatisfactory given the Conservatives’ manifesto pledge that there would be explicit statutory protection for the role of journalists and a commitment that “we will ban the police from accessing journalists’ phone records to identify whistle blowers and other sources without prior judicial protection”.
The first draft of the IPB required (under clause 61) the approval of an independent judicial commissioner before authorisation was granted for the obtaining of judicial sources via communications data. The commissioner’s powers were limited to assessing the reasonableness of the police application for authorisation – not a full inter partes merits hearing at which the media is present prior to authorisation. That was rightly criticised as being inadequate to meet the requirements of Article 10. A further defect was highlighted by the Intelligence and Security Committee in its Report that clause 61 did not apply to the security and intelligence agencies. The Joint Committee on the Draft Investigatory Powers Bill also performed a very detailed review of the Bill, making 86 recommendations and many overarching criticisms.
A full summary of the various Committees’ criticisms of the Bill and the Government responses is helpfully collated here.
In relation to the specific inadequacies raised about the ‘dual lock’ of police and judicial commissioner authorisation the Government has summarily rejected the suggestion that the clause 68 (previously clause 61) of the Bill should include equivalent journalistic protections to PACE or that journalists should have equivalent protections to that attaching to legally privileged material. The brusque justifications given include
“The Government is satisfied that the additional protections set out in the new draft Codes of Practice … are appropriate in relation to journalistic material. This reflects the fact that it is much harder to define in law what constitutes a journalist”.
That is probably a barbed reference to the David Miranda’s case in which Sch. 7 of the Terrorism Act was held to be incompatible with Article 10 in relation to Snowden material held by Glen Greenwald’s partner (not himself a journalist) as he passed through Heathrow airport.
The special treatment of journalists in the accompanying Codes of Practice is welcome but is completely inadequate as a safeguard and fails to meet Article 10 standards. The Code stipulates “Particular consideration must also be given, when pertinent, to the right to freedom of expression and the need to protect the public interest in the confidentiality of sources of journalistic information through judicial approval of relevant applications”(para 3.7);
“there must … be an overriding requirement in the public interest … where an application is intended to determine the source of journalistic information” (para 6.5); “that particular care must therefore be taken to ensure that the application considers whether the intrusion is justified, giving proper consideration to the public interest [in relation to an application whose intended target is not a journalistic source]” (para 6.7).
But these safeguards are only meaningful if the media are present prior to the granting of an application at an inter partes judicial hearing at which the judge himself makes the public interest vs. freedom of expression assessment. Most notably the Government has singularly failed to explain why such safeguards, which work well in PACE and the Terrorism Act, often in urgent an national security situations, are wholly inapt in relation to the Bill or how the far weaker safeguards in the IPB in fact meet Article 10 safeguards.
One welcome change is that the security and intelligence agencies’ exemption has been removed from clause 68. Somewhat cryptically, in relation to the concern by the Joint Committee that the Bill should not be used to circumvent PACE or the Terrorism Act in relation to journalists, the Government “distinguishes the purpose of the Bill in obtaining communications data from communications service providers, from that of PACE and the Terrorism Act 2000 in obtaining journalistic materials from journalists themselves”.
In other words, the Governments considers that it is acceptable to use the IPB to obtain journalists’ sources (via communications data) subject only to judicial commissioner safeguards because that process supposedly does not involve directly targeting the journalist. But that is precisely the vice of the legislation not a justification for it – how can it be justifiable to obtain journalistic source details indirectly from a service provider with far weaker safeguards than would have been required to obtain the same source material directly from a journalist under PACE or the Terrorism Act?
The Bill faces a rocky path onto the statute book, with Labour promising to abstain, but whether the plight of journalists gets lost in the crossfire remains to be seen.
Alex Bailin QC is a member of Matrix.