Home Secretary Fails to Spell Out Protection for Journalists’ Sources in Draft IP Bill

The Home Secretary has clarified the nature of the judicial protection in the draft Investigatory Powers Bill, but avoided addressing the issue of codified protection for journalists and their sources.

While giving oral evidence to the Joint Committee on the Draft Investigatory Powers Bill, the Home Secretary responded to questions about how the proposed “double lock” – where both the Minister and a Judicial Commissioner need to approve an application for an interception warrant – would work in practice.  

The draft Bill sets out the grounds on which the Judicial Commissioners would look at the applications, which reflect the principles of judicial review. What has been unclear to date was whether this restricted the Commissioners to applying the “light touch” standards that judicial review entails – deferring to the Minister’s decision where there is room to do so.

The Home Secretary said: “The whole point of the double-lock authorisation is that both parties have to agree to the warrant being applied. If the Judicial Commissioner decides that the warrant should not be applied, having looked at it and applied the tests that they need to apply, then obviously it cannot be operated…

“The purpose of having the judicial review principles is that it provides the flexibility for the Judicial Commissioner to determine the degree of assessment that they choose to put on a particular application… They get a degree of flexibility with reference to the judicial review principles.”

However, what Teresa May failed to satisfactorily address was the lack of protection for journalistic sources. Instead, she said that this confidential relationship, as well as the legal professional privilege relationship, will be factored in during the assessment of necessity and proportionality.

She argued that it would be undesirable to totally remove communications of these kinds from the reach of the powers within the Bill.