Investigatory Powers Bill — House of Lords, 2016-07-11
Topic: Civil Rights
Guy Vaughan Black (Conservative, Centre-right): My Lords, I support Amendment 25, moved by the noble Viscount, Lord Colville. I declare my interest as executive director of the Telegraph Media Group and draw attention to my other media interests in the register As the noble Viscount has said, the issue of the confidentiality of journalists’ sources has been a leitmotiv during the obsequies of the unloved Regulation of Investigatory Powers Act and throughout the passage of this Bill, during extensive pre-legislative scrutiny, in all its stages in the other place and now here in Committee in your Lordships’ House. But we are now nearing the end of it all and so this is probably our last opportunity to get it right. It therefore deserves the closest and most thorough attention I doubt that there are many here who need persuading about the importance, in a free society, of the protection of sources. The arguments were most formidably summed up in the case of Goodwin v United Kingdom in a famous ruling in the European Court of Human Rights some 20 years ago, which stated: "Without … protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected" The protection of sources is crucial for investigative reporting, whistleblowing and indeed free and unfettered political debate. Without adequate protection, investigative journalism becomes almost impossible, whistleblowers do not come forward to the press and wider media to alert them to issues of public interest, and political debate becomes sterile and bland Your Lordships should not underestimate the difficulty already faced by journalists in getting confidential sources to speak on matters of often profound public interest. There has been so much attention given in recent years to the way in which sources have been exposed through surveillance and the misuse of anti-terrorist legislation that it is becoming harder and harder to get sources to come forward. Some even fear for their lives because they could easily become targets themselves if it became known that they had co-operated with a reporter. It is not an overstatement to say that, on occasion, the protection of sources can be a matter of life and death. That is why we must take with the utmost seriousness the passage of any legislation in this House which damages free expression and undermines the protection afforded to confidential sources by opening up the possibility of the state being able to shadow the work of journalists, track what they are up to, identify their sources and see what information they have made available I know that the Government are acutely aware of the importance of this issue and have listened with great diligence to the concerns of the media and others. I am very grateful to them for the action that they have already taken to strengthen the Bill in this regard, and the amendments in the other place are a very welcome step in the right direction. Unfortunately, I do not believe that they have yet gone far enough. Yes, there are safeguards, and they are very welcome. But they are not strong enough, and above all they will not work properly, and that is what this amendment is all about As I have said, this is a matter of real and urgent concern to the whole of the media—publishers, editors, trade unions, the national and regional press, magazines, broadcast and digital—and there has been unprecedented co-operation among interests which are often competing. The reason for this level of unity is, I am afraid, a profound sense of déjà vu. During the passage of RIPA back in 2000, a similar coalition of interests, led by the Newspaper Society, warned that its wide terms and lack of adequate safeguards would inevitably lead to the undermining of confidentiality of sources. The industry warned that the number of organisations which could use RIPA powers should be limited and that the grounds for the use of those powers should be more strictly limited. The industry was repeatedly told that it was crying wolf and that there was no way the Bill could be so abused. On 6 March 2000, Jack Straw, then Home Secretary in the other place, gave a specific guarantee on that subject But, of course, we know exactly what happened. We have heard of, and seen, numerous examples where local authorities and the police then subsequently used RIPA powers of surveillance to access phone records to crack down on whistleblowers talking confidentially to the press; and it has often been the local press, who are the guardians of local democracy and accountability, who have been in the firing line. In one case, involving the Derby Telegraph, a local authority used RIPA powers to spy on a reporter who had been talking to council employees. In another, deeply disturbing incident, Thames Valley Police used RIPA powers to place a probe inside the car of a source who had been talking to a reporter from the Milton Keynes Citizen, Sally Murrer, and, on the back of recordings obtained, arrested the journalist and strip-searched her. In 2012, Cleveland police used RIPA powers to access the phone records of three Northern Echo journalists to try to find out the source of its coverage of a Cleveland Police internal report that revealed elements of institutional racism within the police force All this—and much more that we may never know about—happened despite protestations from the then Government that this could not possibly happen. The reason for that, as we have seen in countless other cases of legislation involving press freedom and confidentiality of sources, is that the legislation has not been watertight, proper and comprehensive safeguards were not written into the Bill, and it has been too easy for those wanting to access sources to find loopholes through which to crawl. This mistake cannot be allowed to happen again It is easy to see where the problem with this Bill arises. As the noble Viscount said, yes, there are safeguards in Clause 73 relating to prior judicial authorisation, and that is welcome, but it is inadequate in a number of respects. For one thing, it governs acquisition of communications data only for the purpose of identifying or confirming the identity of a journalistic source. Crucially, it does not apply to acquisition of data for other purposes. But most importantly, it does not allow for prior notification to the media of an application to use the Bill’s powers, and the opportunity for the media to make submissions on whether this will impact on the confidentiality of a source It is all very well having judicial safeguards in place, but they will not work unless the judicial commissioner assessing the application has all the relevant information before applying his or her judgment and making an informed decision. After all, how can a judicial commissioner possibly know what they do not know? That is almost Kafkaesque. Without input from the media—and I recognise that there must be exceptions to this where a journalist or media organisation is under suspicion—they could not possibly, for instance, know how the use of surveillance could actually place the life of a source, or indeed of a journalist, in danger and other such considerations. In those circumstances, the important tests outlined in the Bill cannot be properly applied, and as a result the safeguards simply will not work.