Counter-Terrorism and Border Security Bill — House of Lords, 2018-12-17
Topic: Law and Crime
Susan Williams (Conservative, Centre-right): I agree totally with noble Lords that there is a balance to be struck between the freedom of the press and getting material that is not conducive to this country’s well-being. The amendments reflect concerns about how Schedule 3 ports powers apply to journalistic material and sources. The noble Baroness, Lady Jones, spoke passionately about that issue in Committee; I hope to assure her that Schedule 3 includes a number of safeguards to protect confidential material, including confidential journalistic material Schedule 3 is a counter-hostile state activity power. With that in mind, it is vital that ports officers are equipped to deal with the means and methods of those engaged in such activity. I spoke in Committee about the very real threat we face from foreign intelligence officers and their agents who actively use the cover of certain professions including journalism, the law and others. That is why Schedule 3 introduces new powers to allow for action to be taken where an article that may include confidential material could be used in connection with a hostile act, presents a threat to life or could lead to significant injury Amendment 34E would undermine the ability of ports officers to detect, disrupt and deter hostile actors as it would allow a person simply to refuse a request for documents or information, including sources, where they claim that it consists of journalistic material, as defined by the Police and Criminal Evidence Act and the Investigatory Powers Act, or is subject to legal privilege. That would prohibit the examining officer verifying that the material in question is confidential or journalistic and would require the officer to take the examinee at their word I have spoken before about why that would be problematic when faced with trained hostile actors who will seek to exploit any possible loophole in our legislation, yet the concerns raised by the noble Baroness, Lady Jones, are precisely why the new retention powers in respect of confidential information require the authorisation of the Investigatory Powers Commissioner, who must be satisfied that certain conditions are met before granting that authorisation. This approach protects the work of legitimate journalists and lawyers and is consistent with the Court of Appeal’s judgment in the Schedule 7 case of Miranda, to which the noble Baroness referred. In that case, the court said that, "independent and impartial oversight … is the natural and obvious adequate safeguard", in examination cases involving journalistic freedom Amendment 34F would extend the statutory bar—which prohibits answers or information given orally by a person during an examination being used in criminal proceedings—to any information or documents given where the material is considered journalistic. Noble Lords will know that the purpose of this important safeguard, as recommended by the noble Lord, Lord Anderson, is to protect an examinee against self-incrimination where they must respond to questioning under compulsion and so do not have a right to silence. The amendment would extend the statutory bar into territory it was not designed or intended to cover. It could prevent evidence of a hostile act from being used in criminal proceedings where it had been acquired through the legitimate examination of confidential material on the authorisation of the Investigatory Powers Commissioner. Accepting this amendment would undermine the ability of the police and the CPS to prosecute hostile actors, either those who have used journalistic cover to disguise their criminal activities or those whose activities might be evidenced by confidential material in the hands of a third party Although I do not agree with the amendments, for the reasons I have explained, I recognise the force of the noble Baroness’s arguments on the need for strong protections for journalistic material that is not confidential. I will therefore ask my officials to consider if any additional protections may be introduced through the Schedule 3 codes of practice. I can undertake to keep the noble Baroness informed of progress with this work, and of course a revised version of the draft code of practice will need to come back to this House to be approved before those provisions come into force. I am grateful to the noble Baroness for giving the House another opportunity to debate the appropriate safeguards for journalistic and legally privileged material under Schedule 3. In light of my undertaking to do this additional work, I hope she will feel happy to withdraw her amendment.