Investigatory Powers Bill

● On 19th January 2016, David Miranda’s appeal against the use of police powers to stop, detain, question and search him at Heathrow Airport in August 2013 [4] was ruled on by the Court of Appeal. While upholding the legality of the police detention, the judgement emphasised the significance of giving proper protections to journalistic material, following which it seems likely that the draft Bill would contravene Article 10 of the ECHR.

The Bill Committee provides the opportunity to reshape the Investigatory Powers Bill so that it strikes the right balance between security, transparency and oversight. The law enforcement and security services must have the right powers to ensure the security of the nation, with proper oversight to ensure they are used in a proportionate manner.

2. Protection under the Police and Criminal Evidence Act 1984 and the Bill

The two reports and court judgement re-emphasise the importance of proper procedural standards and safeguards. The Police and Criminal Evidence Act 1984 (PACE), sets out a number of procedural and substantive protections for the methods which the state can employ in order to obtain the content of journalistic material and source-related material, which safeguard the right to freedom of expression.

These existing provisions enable journalists and media organisations to make on notice representations to a judge where there is a police application seeking the disclosure of journalistic material. There is no reason why other routes of access, such as via communications data, to other sorts of journalistic material, or information should be treated any differently.

A number of sections of the Bill affect journalism. These are those that grant powers to:

1. Obtain communications data;

2. Examine bulk data;

3. Intercept communications;

4. Interfere with equipment;

5. Access a bulk data set.

Clause 68 of the Bill is the only section that aims to put into any sort of statute protections for journalism. This relates only to obtaining communications data. However, that clause fails to meet the existing standards as set out in PACE, which provide a clear process with proper judicial scrutiny.

The rest of the protections are found in codes, and do not meet the standards set out in PACE either. It is not a sufficient protection, to put fundamental safeguards such as these into a Code of Practice, particularly one which is not mandatory and can be ignored without penalty.

The Bill therefore currently provides insufficient safeguards for journalism and offers a lack of proper protection for journalistic material and confidential journalistic sources.

3. Amendments

The protection of journalists requires amendments to the Bill to each of the powers labelled 1-5 above to introduce separate procedures for each case where journalistic sources, journalistic materials and journalistic activity are involved.

We understand that there might be exceptional circumstances, where it might not be possible to go through an on notice, judicial process, for example where there is an immediate threat to life or where the journalist is suspected of serious illegality or wrongdoing, but those should be the exception not the norm.

Otherwise, there must be a procedure where journalistic sources, journalistic materials and/or journalistic activity are involved, which makes sure that the following minimum conditions apply:

● Journalists and media organisations must be able to make on-notice representations to a judge where there is an application the purpose or effect of which would involve the potential disclosure of journalistic material, communications, information or sources. Under the Bill, there is only a very low level after-the-fact authorisation process where the express purpose is to identify a journalist’s source, by a Judicial Commissioner, who is only able to assess whether the police had "reasonable grounds" for the intrusion.  This is merely a review of a police decision, already taken, against an extremely broad standard.

● Protections should cover a wide range of journalistic activities, rather than the current very narrow protection that only applies where data is being accessed for the express purpose of uncovering a journalist’s source. As recognised by the Court of Appeal in the David Miranda case

"The central concern is that disclosure of journalistic material (whether or not it involves the identification of a journalist’s source) undermines the confidentiality that is inherent in such material and which is necessary to avoid the chilling effect of disclosure and to protect article 10 rights. If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest. That is why the confidentiality of such information is so important. "

● The Bill currently does not have protection for other journalistic information, for example where material identifying a source or other unpublished journalistic material is collaterally discovered as part of another investigation. A "stop" procedure should be included for this sort of situation.

● Access to any journalistic material, or information that relates to journalistic activities, should only be authorised by a judge sitting within the court system - as in the case of PACE today - rather than Government-appointed Judicial Commissioners.

● There should be a proper court-based right of appeal.

4. Previous reports

The Joint Committee report

The Joint Committee on the Draft Investigatory Powers Bill released its detailed report on 11th February. The report raises concerns that the new proposals would diminish ‘journalistic privilege’ and would allow intelligence and security services to bypass PACE and the Terrorism Act 2000, potentially in contravention of Article 10 of the ECHR relating to freedom of speech.

The committee made four key recommendations on journalistic privilege, including that:

● Protections should be fully addressed through substantive provisions on the face of the Bill;

● The Home Office should reconsider the level of protection that the Bill affords journalistic materials and sources to ensure they are at least equivalent to current protections available under PACE and the Terrorism Act 2000 (these include prior notification of communications data gathering and a right to a fair judicial hearing)

● The Bill should make clear that its powers cannot be used to obtain journalistic material or sources as a way of avoiding the application of PACE and Terrorism Act

● The Home Office should review draft Clause 61 (now Clause 68, which deals with communications data collection) to ensure it complies with Article 10 of ECHR.

Intelligence and Security Committee report

The ISC report on the draft Investigatory Powers Bill was published on 9th February 2016. [5] The ISC’s report outlined concerns about the safeguards for communications data and privacy and about the continued use of Codes to regulate crucial issues. Para 10 of the report states that:

"This approach [i.e. the approach that protecting privacy as an integral part of legislation] should also be applied to the additional protections afforded to certain sensitive professions. However, again, these are mentioned sporadically throughout and do not appear to be applied consistently. For example, Clause 61 sets out that a Judicial Commissioner must approve an authorisation to obtain Communications Data for the purpose of identifying a source of journalistic information. However, this clause does not apply to the Agencies."

Court of Appeal ruling on David Miranda’s appeal

 In the Miranda case, the court ruled on two points of direct bearing to the Bill. The ruling effectively means that if clause 68 of the Bill were passed without alteration, it would most likely be held to be incompatible with Article 10 of the European Convention on Human Rights. Specifically, the ruling has direct implications for the process by which access to journalists’ communications is authorised. Paragraph 113 of the Miranda judgement (our emphasis) states that:

"The central concern is that disclosure of journalistic material (whether or not it involves the identification of a journalist’s source) undermines the confidentiality that is inherent in such material and which is necessary to avoid the chilling effect of disclosure and to protect article 10 rights. If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest. That is why the confidentiality of such information is so important. It is, therefore, of little or no relevance that the Schedule 7 powers may only be exercised in a confined geographical area or that a person may not be detained for longer than nine hours. I accept that the fact that the powers must be exercised rationally, proportionately and in good faith provides a degree of protection. But the only safeguard against the powers not being so exercised is the possibility of judicial review proceedings. In my view, the possibility of such proceedings provides little protection against the damage that is done if journalistic material is disclosed and used in circumstances where this should not happen. An important rationale for the principle of legal certainty that underpins the concept of "prescribed by law" is that there should be adequate safeguards against arbitrary decision-making. Unlike the position in relation to article 5 and 8, the possibility of judicial review proceedings to challenge the rationality, proportionality and good faith of a decision to interfere with freedom of expression in cases involving journalistic material cases does not afford an adequate safeguard."

The implications of the Miranda ruling for the Bill are that:

● Protections for journalism should apply to journalistic material whether or not that material involves the identification of a journalist’s source. This contradicts the draft Bill which contains a much narrower requirement of material where the application is for the purpose of identifying a journalistic source . This wouldn’t cover other details acquired by a journalist for the purposes of a sensitive journalistic investigation, or where a source is stumbled upon, for example unpublished material.

● It is unacceptable that any checks and balances only come into play after the exercise of the powers (after the event approval by a Judicial Commissioner) as this does not stop the harm that is done from the initial act of disclosing legitimately confidential material. Under the draft Bill, authorisation would only happen after the fact - and even then the Judicial Commissioner is only able to assess whether the police had "reasonable grounds" for the intrusion. This is merely a review of a police decision, already taken, against an extremely broad standard, not an inter partes process.

5. Politicians of all parties have called for stronger protections for journalists and their sources

On the 7 th October, Lord Falconer , who was a member of the last Government when RIPA was passed said,

"There are provisions in other legislation which say where there’s an issue about identifying a journalistic source, the application for that material should go before a judge so the judge can balance the public interest in making sure there’s a proper investigation against a need to protect journalistic sources… Going and using Ripa involves no such balance - the police can authorise it themselves so nobody ever considers the balance of, for example, protecting sources… It does look this is not a proper use of the powers. [6] ’