A parliamentary committee has called on the government to ensure that the Investigatory Powers Bill protects journalists’ sources.
A report by the joint committee on human rights said such sources should receive the same protection as is given under the Police and Criminal Evidence Act (Pace).
Crucially, this would include a requirement that when applications for material are made by the police and security services then media organisations should be alerted in advance and also have the opportunity to make representations against the application.
In making its call, the committee rejected the government’s view that giving advance notice of applications could prejudice, or impede, investigations.
It believes the current proposals in the draft bill run the risk of being incompatible with the right to freedom of expression guaranteed under article 10 of the European Convention on Human Rights (ECHR).
The 12-strong committee of MPs and peers, which includes six Conservative members, say in the report:
“Interferences with the confidentiality of journalists’ sources can have a ‘chilling effect’ on the willingness of sources to talk to the media, which may limit the media’s access to whistleblowers who are prepared to expose wrongdoing to the media but in the expectation of anonymity.
Such interferences with the communications between journalists and their sources therefore require the most careful scrutiny. There is no immunity from disclosure, but the [European] court [of human rights] has held that only ‘an overriding requirement in the public interest’ is capable of justifying such interferences.
Special safeguards are therefore required in order to protect the confidentiality of journalists’ sources.”
In the committee’s view, the draft bill provides less protection for journalists’ sources than the current law in Pace and the terrorism act. Both require applications to be made to a court for a production order.
The relevant journalist, or his/her media organisation, therefore has an opportunity to appear at a hearing before the judge to make arguments about the need to protect the confidentiality of his/her source.
Although the government has responded to criticism by making some changes to the bill, such as a clause requiring approval by the judicial commissioner for authorisations to identify or confirm journalistic sources.
It has also made clear that all the codes of practice accompanying the bill “must include [a] provision designed to protect the public interest in the confidentiality of sources of journalistic information”.
Even so, the committee believes these do not go far enough. The government had still not accepted its main recommendation that the safeguards for journalists’ sources should be equivalent to those provided by Pace and the terrorism act.
Turning to the powers used by security services to hoover up large volumes of data, the committee argued that they were not “inherently incompatible” with human rights laws on privacy, and that so-called bulk capabilities were “capable of being justified”.
Bulk powers are among the most controversial tactics set to be covered by the Investigatory Powers Bill - and the government has previously disclosed that they have played a part in every major counter-terrorism investigation in the last decade.
The powers cover a range of techniques used by GHCQ, MI5 and MI6 to acquire information in large volumes. Data is then used to generate intelligence about threats that cannot be obtained by more targeted means.
It was reported last week that home secretary Theresa May had agreed to establish an independent review to examine the operational case for powers which allow for the bulk collection of data.
The committee’s chair, Harriet Harman, said: “The bill provides a clear and transparent basis for powers already in use by the security and intelligence services, but there need to be further safeguards.
“Protection for MP communications from unjustified interference is vital, as it is for confidential communications between lawyers and clients, and for journalists’ sources.
“The bill must provide tougher safeguards to ensure that the government cannot abuse its powers to undermine parliament’s ability to hold the government to account.”
Sources: PA Media Lawyer/Joint committee report
