Counter-Terrorism and Border Security Bill

Written evidence submitted by the News Media Association (CTB02)

Written Evidence on the Counter-Terrorism and Border Security Bill 2018

1. The News Media Association is the voice of national, regional and local news media organisations in the UK. Our members’ 1000 titles, in print and online, are read by some 48 million adults every month. [1] News media companies are the biggest investors in original news content, accounting for 58 per cent of the total spent on news provisions in the UK. [2]

1. The protection of journalists’ sources and journalistic material is vital in a functioning democracy, and the scope and breadth of some of the offenses and powers in the Bill are unjustifiable. The protections provided in the Bill recognise this to some extent through the importing of protections provided for in the Police and Criminal Evidence Act 1984 (PACE), but these do not apply to all the powers, which greatly undermines their ability to act as a meaningful safeguard. In this submission, the NMA reinforces the need to curb discretionary powers, the importance of the provision of, and enforcement of, protections for journalists at every stage of every power provided for, as well as the extension of defences to cover corresponding expansion of offenses.

Section 3 - Obtaining or viewing material over the internet

2. The Bill extends the scope of the offense of collecting material likely to be of use in an act of terrorism, as set out in Section 58 of the Terrorism Act 2000. Under the Bill, this offense would be extended to include "on three or more different occasions the person views by means of the internet a document or record" [3] containing information of a kind likely to be useful to a person committing or preparing an act of terrorism. This includes viewing three or more different documents once each. This extension of an already broad offense is unacceptable. There is no requirement of intention, and so anyone who inadvertently or accidentally accesses three such types of material will be caught by the offense.

3. There is a defence available if it can be shown that the person charged "had a reasonable excuse for his action or possession" [4] . It is vital that this defence is also applied to the extension of the offense proposed by the Bill. Terrorism is a matter of great public importance, and so it is the duty of journalists to report on it. Investigations may require them to watch or access propaganda and other materials that, but for this defence, would make them guilty of an offense under section 58. The defence is therefore crucial to protect journalists carrying out their democratic function, and it must be applied fully to any extension of the offense.

Section 21 – Minor and consequential amendments

4. Section 21 of the Bill provides that "[t]he Secretary of State may by regulations make provision that is consequential on any provision made by this Act" [5] . While there are purported safeguards that a provision to alter primary legislation must get the approval of both Houses, [6] and that a provision that does not alter primary legislation is open to annulment by either House, [7] this section still provides a significant amount of discretionary power to the Secretary of State over fundamental rights issues, including freedom of expression and press freedom. While this may be intended to future proof the provisions in the face of rapidly developing technology, and allow for efficient updates to the law, this provision creates as many risks as it does potential benefits.

5. First, Parliament may not have the time to properly debate provisions before they are approved, and key stakeholders may not have the chance to make important submissions on their potential consequences before approval. This creates a risk that primary legislation – the highest law of the land – could be changed in a way that is detrimental to fundamental human rights, without proper Parliamentary scrutiny and input from expert stakeholders.

6. Similarly, the discretion to make regulations that do not amend primary legislation without prior approval from Parliament creates the risks that undesirable or draconian provisions could be made law without the scrutiny needed to ensure the protection of fundamental rights. There is no notification requirement that means such regulations must be brought to the attention of either House, and so the safeguard of the power to annul is significantly weakened. Problems are likely only to come to light after injustice occurs.

7. The NMA strongly recommends that these provisions are removed from the Bill – the risks that they create cannot be justified by arguments of expediency. If not, at the very least the NMA recommends that Parliament is required to approve these types of regulations in advance - or at the very least must be notified before they come into force - and given adequate time to consider whether they should be blocked before they are allowed to take effect.

Schedule 3

(i) Powers to Stop, Question and Detain

8. The importance of protecting journalists and journalistic material when combating terrorism came into sharp focus in the case of David Miranda – a journalist who was detained at Heathrow airport in 2013 for carrying files related to information obtained by Edward Snowden. The Court of Appeal agreed with the Appellant that: "The stop power, if used in respect of journalistic information or material, is incompatible with Article 10 [freedom of expression] of the [European Convention on Human Rights] because it is not ‘prescribed by law’… If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest." [8] The Court of Appeal warned against broad powers that could be used against journalists. The powers contained in Schedule 3 appear to attempt to legitimise the functions that were condemned by the Court in the Miranda case, which held "that the stop power conferred by para 2(1) of Schedule 7 is incompatible with article 10 of the Convention in relation to journalistic material in that it is not subject to adequate safeguards against its arbitrary exercise and I would, therefore, allow the appeal in relation to that issue. It will be for Parliament to provide such protection. The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny conducted in such a way as to protect the confidentiality in the material." [9]

9. Paragraphs 1 -3 of Schedule 3 provide border security with the ability to question people at the border, and to require them to provide any documents or information that they have. There is no right to contact a lawyer or obtain legal advice, there is no exception to allow for refusal to protect the identity of a source, and it is an offense to refuse to answer or otherwise obstructs any such questioning or requests for document production. [10] This does not allow journalists to protect the identity of their sources. If they refuse to answer a question or produce a document because it would reveal the identity of a source, they would be guilty of an offence. This is so even if the examining officer does not have grounds for suspecting that the person is or has been engaged in hostile activity. [11] A journalist could be guilty of an offense for refusing to identify a source, even if there was no reason to ask the question. This flies in the face of the protection for journalists that the Miranda case held to be vital.

10. Paragraph 6 states that oral answers given cannot be used as evidence in a criminal trial, but no such protection is available for any documentation or electronic information that is required to be handed over. Again, this does not provide the protection for journalism that the Court of Appeal held was vital in the Miranda case. The protection that covers oral answers must also cover written documentation and other material provided, or there must be an exception made for material that identifies a journalist’s source, as otherwise a source may be identified in open court.

11. The NMA urges that these broad and unjustifiable powers be removed from the Bill. If not, amendments must be made to ensure that someone can assert journalistic privilege and seek legal advice at this stage. Elsewhere in Schedule 3 such protections are included. The power to retain property makes specific provision for "protected material", which includes journalistic material that would fall within the definition of the Police and Criminal Evidence Act 1984. [12] The NMA recommends that these protections are extended to apply to the power to stop, search, question and detain in paragraphs 1 - 3. Only by protecting journalists and journalistic material from the outset of any investigation can the right to freedom of expression, as set out in Miranda, be properly upheld. This should include being informed of their rights as a journalist and what this means, as some may be unaware, which could result in these rights and protections being undermined.

(ii) Retention of Property

12. The ability to make representations before property is retained, and the ability to refer the issue to the Investigatory Powers Commissioner, falls short of what is needed. The Investigatory Powers Commissioner can only decide whether the way in which the power to retain was exercised was procedurally correct, rather than addressing the substance of the decision. The Investigatory Powers Commissioner should be able to look at, and rule on, both the procedure and the substance of any such exercise of power. This would help to save on costly and time-consuming appeals on merit after the fact.

13. Further, it is also important that any such ruling from the Investigatory Powers Commissioner at this stage does not preclude access to justice by reducing the availability of either a merits appeal or of judicial review.

(iii) Power to make and retain copies

14. The protection for copies of material provided for in paragraph 15, which states the Investigatory Powers Commissioner must be notified of any copies made, and must only allow this copy to be retained and/or used if satisfied that "arrangements are in place that are sufficient for ensuring that any confidential material [13] contained in the copy is retained securely" [14] must go further. There should be a requirement to notify the journalist for decisions relating to confidential journalistic material, including when copies are made, how they are held, how they are used and when/if they are destroyed.

15. In addition, when deciding whether the purposes for using copies are proportionate under paragraph 15(5)(b), specific reference should be made for the need for the Investigatory Powers Commissioner to take into account whether any of the information held in the copy is confidential material.

Conclusion

16. This Bill creates broad offenses, and provides for broad, discretionary powers, both of which threaten the ability of journalists to protect their sources. Only by protecting journalism at every stage can the powers within this Bill meet the requirements of the freedom of expression. This means not only must the law have explicit protections, but that those enforcing the law are aware of what is required by these protections, including the requirement that journalists are made aware of their rights, that journalists are given the opportunity to obtain legal advice, and that border agents and the CPS are fully briefed on the need to protect journalistic privilege. Without this comprehensive protection of journalism, the protections that have been included in the Bill could be rendered much less effective.

June 2018


[1] NRS PADD, 2017 http://www.nrs.co.uk/latest-results/facts-and-figures/newspapers-factsandfigures/

[2] Estimate by Mediatique Ltd http://downloads.bbc.co.uk/aboutthebbc/insidethebbc/howwework/reports/pdf/media tique_online_news_report_dec_2014.pdf; Mediatique Ltd also referenced by O&O at http://www.newsmediauk.org/write/MediaUploads/PDF%20Docs/OandO_NMA_-_UK_news_provision_at_the_crossroads.pdf

[3] Counter-Terrorism and Border Security Bill, section 3(2)(b)

[4] Terrorism Act 2000, section 58(3)

[5] Subsection 2

[6] Subsection 4

[7] Subsection 5

[8] R (on application of David Miranda) v Secretary of State for the Home Department and Commissioner of Police for the Metropolis, paragraphs 94 and 113

[9] Paragraph 119

[10] Schedule 2 paragraph 16(1)

[11] Paragraph 1(4) explicitly states that officers do not need to have any reason to suspect a person before they can exercise these powers

[12] Paragraph 12(11)

[13] Which includes confidential material as defined by paragraph 12(10), which includes journalistic material as defined in PACE 1984.

[14] Paragraph 14(5)(a)

 

Prepared 27th June 2018