Investigatory Powers Bill

Written evidence submitted by the News Media Association (NMA) (IPB 26)

1. The News Media Association (NMA) represents the UK news media sector covering some 1100 national, regional and local newspaper titles in print and 1700 associated websites in the UK,. They are read by 42 million adults each week, while driving nearly a billion social media interactions a year. They are by far the biggest investors in news, accounting for more than two thirds (69%) of the total spend on news provision in the UK.

2. The Investigatory Powers Bill is of acute concern to our members. It does not provide adequate protection for press freedom, limited to protection of journalistic sources. The Bill must be amended to ensure the strong and effective safeguards are introduced.

3. The press plays a crucial role in a democratic society. It cannot act as the public watchdog if its journalists are under state surveillance and their sources liable to exposure. The Bill fails to provide adequate safeguards for freedom of expression, press freedom and protection of sources. However, amendments can be made to provide proper protection. UK parliament and UK courts have long recognised the journalistic protections necessary for proper safeguard of press freedom by way of longstanding statutory safeguards such as those set out in the Police and Criminal Evidence Act 1984 and Terrorism Act 2000. These can be adapted to the new framework and set out in the new primary legislation, without detriment to the work of the relevant authorities

4. As the NMA and its members had warned during passage of RIPA 2000, the sweeping powers of covert surveillance, including human surveillance and interception of communications data have been widely used- and abused- against journalists and their sources. These include cases involving local journalists-from farcical tearoom surveillance or demand for telephone records in attempts to discover the source of council leaks to the very disturbing case of Sally Murrer. There has been more indiscriminate surveillance utilising powers to intercept communications data, highlighted by high profile cases involving national media. Access to journalists’ communications data makes it very easy to identify journalistic sources. It has a chilling effect upon freedom of expression and press freedom irrespective of whether the source, a particular journalist, or news desk or media organisation is the direct or indirect subject of the investigation. Any whistle blower is likely to be deterred if fearful of exposure as a source, through the authorities’ access to communications data of journalists and media organisations. The Interception of Communication Commissioner reported that police forces sought communications data in relation to 34 investigations relating to 100 journalists from national and local newspaper sectors over a three year period. 608 applications were authorised to seek communications data. The police application and use of such powers was criticised- however the introduction of a code and the interim requirement of police ex parte application for PACE production order under the serious Crime Act 2015 have not proved effective enough controls. RIPA and RIPA Codes have not provided tight enough controls over use of surveillance powers in relation to the press and sources.

5. The NMA is concerned that the Investigatory Powers Bill and proposed Codes fail to introduce proper safeguards for press freedom in respect either of the RIPA powers that are to be retained or the investigatory powers that are to be legitimised by the Bill. These powers can have a huge impact upon press freedom, since they enable surveillance of individual journalists, investigative teams, the news desk, and the entire editorial staff of media organisations. They would enable surveillance of the subject matter, progress, course and content of their investigations, news gathering and reporting prior to publication. They would enable identification of journalistic sources, including confidential sources, whether or not an investigation was targeted upon such identification.

6. The NMA submits that the Bill must be amended to provide stronger safeguards in respect of intrusive and covert surveillance under RIPA 2000 and in respect of all investigatory powers and capabilities of all the relevant authorities under the Bill. These amendments should put on the face of the Bill all the stronger procedural and substantive safeguards that are necessary and must pertain to all use of the powers to be governed by the IP Bill: the interception of communications, the retention and acquisition of communications data, equipment interference, the retention and examination of bulk personal datasets. This includes the powers provided on both a targeted basis and in bulk for interception, acquisition of communications data, including the new capability for retention and use of internet connection records and equipment interference powers.

7. These amendments must ensure that the Bill when enacted enshrines in primary legislation statutory protections modelled upon those set out in the Police and Criminal Evidence Act 1984 (helpfully preserved in the primary legislation by the Government with cross-party support at the time of the Deregulation Act 2015, in order to ensure that press freedom protection could not be removed or reduced without the consultation and detailed Parliamentary scrutiny that would require). The Bill should give equivalent levels of protection in respect of use of investigatory powers against journalists, journalistic activities and journalistic sources

8. The Bill should therefore be amended to require an application to an independent judge for authorisation of the relevant investigatory power, conditional upon satisfaction of statutory criteria that recognise freedom of expression rights. The new legislation must require prior media notification of the application, an inter partes hearing before the judge, enabling the media and its legal representatives to contest and test the applicant’s case. This will enable the judge to make a fully informed evaluation, in relation to all relevant criteria, and make a decision on the application directly on the merits of the case and its satisfaction of the appropriate legal conditions, with particular reference to freedom of expression and press freedom issues. There can be provision for swift appeal. If any urgency procedures prove necessary, these must not be open to abuse or provide a convenient method of bypass of the statutory protections or otherwise enable use of the powers and information gathered..

9. The Joint Committee conducting pre-legislative scrutiny on the Draft Bill made strong recommendations for such amendments to be made. The Joint Committee specifically considered journalistic privilege, conducted a hearing and received written evidence from the NMA and other media organisations on the necessity for better protection for journalistic activities, journalistic material and journalistic sources. (See section on Journalistic Privilege pages 131 onwards Journalistic Privilege . It recommended equivalent protections on the face of the Bill):

‘553. The Committee considers that protection for journalistic privilege should be fully addressed by way of substantive provisions on the face of the Bill.

554. The Committee recommends that the Home Office should reconsider the level of protection which the Bill affords to journalistic material and sources. This should be at least equivalent to the protection presently applicable under PACE and the Terrorism Act 2000. (Recommendation 48)

555. The Committee recommends that if Clause 61 remains in its present form the Bill should make it clear that RIPA and Clause 61 do not act so as to enable the investigatory authorities to avoid the application of PACE or the Terrorism Act and the ability they afford to media to know about an application for communications data and make representations as to the proposed acquisition. (Recommendation 49)

556. The Home Office should review Clause 61 to ensure that it meets the requirements of Article 10 ECHR. (Recommendation 50)’

10. The Bill introduced into Parliament does not reflect those recommendations. However, the government’s response to the Joint Committee’s report does not produce convincing arguments against amendment of the Bill in the way recommended by the Joint Committee and outlined by the NMA and other media organisations. The NMA and other media organisation would be happy to discuss in detail any amendments that would provide the necessary protection for journalism and allay government concerns.

11. There is no evidence that the safeguards supported by the media and recommended by the Joint Committee are likely to create the problems suggested by the Government in its response to the latter’s recommendations. For example, there are no intense definitional difficulties relating to journalistic protections, including protection of sources that would justify the Bill’s undermining of press freedom. Nor would interpretation of such journalistic protections create operational difficulties for the services, authorities or court if the improved journalistic safeguards were incorporated into the Bill. There are actually numerous examples of statutory safeguards passed by Parliament specifically to protect freedom of expression and press freedom. These include statutory defences, statutory exemptions, statutory criteria and statutory procedures, including the PACE provisions requiring inter partes hearings before independent judges, in order to protect journalistic activities or journalistic material or sources against access by the police or statutory regulators. Examples of such longstanding legislation include the Contempt of Court Act 1981, the Police and Criminal Evidence Act 1984, the Police Act 1997, the Data Protection Act 1998, the Human Rights Act 1998, the Terrorism Act 2000. The media have established means to demonstrate to the police or courts that someone is a bona fide media representative as stipulated by various statutory stipulations. In any event, police operations to date have mainly involved those easily identifiable as journalists and media organisations.

12. Nor does past practice bear out the Government response’s contention that media notification would alert the subject under investigation to the ongoing investigation. No evidence has been put forward of problems in practice, even in the most serious, sensitive or urgent investigations over the past 32 years since PACE was enacted in 1984 or over the past 16 years since the passage of the Terrorism Act 2000. No evidence has been put forward of that any delay or harm to investigations.

13. We note that the Government’s response to the Joint Committee suggested that press freedom protections are not required, as applications by the police for ‘comparable data’ such as bank records do not require prior notice under the PACE procedure. Bank records are not ‘comparable data’ to journalism- and banks may be content to hand over records in response to a court order, without the requirement of an inter partes hearing. In contrast, prior notification and inter partes hearings before an independent judge are crucial to Article 10 and the freedom of expression concerns that underpin the media’s case for amendment of the Investigatory Powers Bill. Indeed, a specific amendment was made to the Deregulation Bill to ensure that the journalistic provisions remained on the face of PACE, in primary legislation, when that Bill enabled the provisions relating to banks etc. to be removed from the primary legislation in favour of a new power to create rules of criminal procedure to govern such applications - which could of course replicate the original( Banks etc were consulted and did not object) The purpose of preservation of the crucial press freedom protections by maintaining the media provisions upon the face of PACE, was to ensure that any proposal to amend those provisions, or dilute their protection, or remove them, could not be brought forward without the public consultation and the detailed public Parliamentary scrutiny that is attendant upon any proposed change to primary legislation. The Government and Parliament recognised the force of the Article 10 arguments for retention in primary legislation put forward by the NMA and other media organisations.

14. The NMA would be happy to discuss in more detail the amendments to the Investigatory Powers Bill that are necessary to provide the proper safeguards for press freedom in the future investigatory powers regime.

March 2016

 

Prepared 24th March 2016