Investigatory Powers Bill

Written evidence submitted by the Media Lawyers Association (IPB 62)

I write to you on behalf of the Media Lawyers Association – the organisation that represents the lawyers for the UK’s major news broadcasters and publishers. The full list of our membership is appended below. The MLA represents lawyers working for news organisations who on a daily basis advise on legal issues concerning access to and disclosure of journalistic material and includes the BBC, Associated Newspapers Ltd, Times Newspapers, Guardian Newspapers, ITN and many others.

We have been closely following the consultation and drafting of the Investigatory Powers Bill. Our earlier submission for the IPB Joint Committee – which I also attach – was referred to in the Joint Committee Report. [1]

We still have significant concerns with the Bill. Journalists and their sources are not adequately protected in the Bill and there is a real shortfall in safeguards. We are particularly concerned at the lack of judicial scrutiny before access is made to journalistic material.

Judicial scrutiny when public authorities are seeking journalistic material is firmly entrenched in law – for example in the Police and Criminal Evidence Act 1984 and Terrorism Act 2000 – but not in this Bill. The Bill runs contrary to the established legal principle that extra protection is needed for journalists’ sources, in particular judicial scrutiny before disclosure can take place. Not having safeguards in place reduces the protection for whistle blowers who may have public interest concerns they wish to place in the public domain.

Please find attached suggested amendments setting out draft wording to strengthen protection for journalists and their sources. Key to this is judicial oversight before access is granted to journalistic material.

We are keen to be involved in this process and contribute where appropriate and I shall be happy to provide any further evidence or information as required.

April 2016

Suggested amendments

Protection for journalistic sources, materials and activities

1A Disapplication of Parts 2 – 7

(1) Save in the exceptional circumstances identified in subsection (2), the regimes provided for by Parts 2 – 7 may not be used to access, obtain, record, hold, consider, analyse, disclose or otherwise deal with information, material or data:

(a) of, or concerning the activities of, journalists; or

(b) if the purpose of so doing is to obtain information identifying a journalistic source.

(2) The exceptional circumstances referred to in subsection (1) are:

(a) the case is one of great emergency, and

(b) immediate action is necessary, and

(c) the relevant investigatory powers under the regimes provided by Parts 2-7 can be used lawfully having regard to the provisions thereof.

1B Special judicial procedure

(1) In any case where the regimes provided for by Parts 2 – 7 are disapplied by section 1A any person who could otherwise have sought to use one of the investigatory powers specified therein may apply to a judge for an order allowing that person to access, obtain, record, hold, consider, analyse, disclose or otherwise deal with such information, material or data in a way provided for by Parts 2 – 7.

(2) An application for an order under subsection (1) shall be made on notice to the journalist or journalists affected unless the judge determines that an application without such notice is required in order to avoid prejudice to the investigation.

(3) Paragraphs 7 – 9 of Schedule 1 to the Police and Criminal Evidence Act 1984 shall apply in relation to the service of a notice of application for an order under subsection (1) as if the application were for an order under Schedule 1 Police and Criminal Evidence Act 1984.

(4) Criminal Procedure Rules may make provision about proceedings under this section where the judge determines that an application without such notice is required.

(5) A judge may only make an order under subsection (1) if the person making the application has convincingly established that:

(a) the order is directed to one or more of the legitimate aims specified in Article 10.2 of the Convention, and

(b) there is an overriding public interest necessitating the order, and

(c) reasonable alternative measures to the order do not exist or have been exhausted, and

(d) the order is proportionate to the legitimate aim or aims being pursued.

(6) The costs of any application under this Schedule and of anything done or to be done in pursuance of an order made under it shall be in the discretion of the judge.

1C Interpretation

(1) In this Part:

(a) "journalist" includes any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication;

(b) "source" means any person who provides information to a journalist;

(c) "information identifying a source" includes:

(i) the name and personal data as well as voice and image of a source;

(ii) the factual circumstances of acquiring information from a source by a journalist;

(iii) the unpublished content of the information provided by a source to a journalist;

(iv) personal data of journalists and their employers related to their professional work;

in so far as far as this is likely to lead to the identification of a source;

(d) "the Convention" means the European Convention for the Protection of Human Rights and Fundamental Freedoms;

(e) "judge" means a circuit judge or judge of the High Court.

List of MLA corporate members as at 7 April 2016

1. Associated Newspapers Limited, publisher of the Daily Mail, the Mail on Sunday, Metro and related websites.

2. The British Broadcasting Corporation, a public service publisher of 8 UKwide television channels, interactive services, 9 UK-wide radio/audio stations, national and local radio/audio services, bbc.co.uk and the BBC World Service.

3. British Sky Broadcasting Limited, a programme maker and broadcaster, responsible for numerous television channels, including Sky News and Sky One.

4. Channel 5 Broadcasting Limited, a public service broadcaster of the Channel 5 service and 2 digital channels, interactive services and related websites.

5. Channel Four Television Corporation, public service broadcaster of Channel 4 and three other digital channels, plus new media/interactive services, including websites, video on demand and podcasts.

6. The Economist Newspaper Limited, publisher of the Economist magazine and related services.

7. Express Newspapers, publisher of the Daily Express, the Sunday Express, the Daily Star, the Daily Star Sunday and related websites.

8. The Financial Times Limited, publisher of the Financial Times newspaper, FT.com and a number of business magazines and websites, including Investors Chronicle, Investment Adviser, The Banker and Money Management.

9. Guardian News & Media Limited, publisher of the Guardian, the Observer and Guardian Unlimited website.

10. Independent Print Limited, publisher of the Independent, the Independent on Sunday, the Evening Standard, i and related websites.

11. Independent Television News Limited (ITN), producer of ITV News, Channel 4 News, Channel 5 News, internet sites and mobile phones.

12. ITV PLC, a programme maker and a public service broadcaster of the channels ITV1 (in England and Wales), ITV2, ITV3, ITV4 and CITV, interactive services and related websites.

13. The National Magazine Company Limited, publisher of consumer magazines including Cosmopolitan, Good Housekeeping, Harper’s Bazaar and Reveal.

14. News Group Newspapers Limited, publisher of The Sun and related magazines and websites, and part of NI Group Limited.

15. News Media Association, which represents the publishers of over 1200 regional and local newspapers, 1500 websites, 600 ultra local and niche titles, together with 43 radio stations and 2 TV channels .

16. PPA (The Professional Publishers Association), which is the trade body for the UK magazine and business media industry. Its 250 members operate in print, online, and face to face, producing more than 2,500 titles and their related brands.

17. The Press Association, the national news agency for the UK and the Republic of Ireland.

18. Telegraph Media Group Limited, publisher of the Daily Telegraph, Sunday Telegraph and related websites.

19. Thomson Reuters PLC, international news agency and information provider.

20. Times Newspapers Limited, publisher of The Times and The Sunday Times and related websites, and part of NI Group Limited.

21. Trinity Mirror PLC (including MGN Limited), publisher of over 140 local and regional newspapers, 5 national newspapers including the Daily Mirror, Sunday Mirror and The People and over 400 websites.

22. Which?, the largest independent consumer body in the UK and publisher of the Which? series of magazines and related websites.

 

Prepared 12th April 2016