IP Bill: NMA to Flag Concerns With Security Minister

The News Media Association is meeting Security Minister John Hayes again today to discuss the Investigatory Powers Bill. The NMA wants effective protection for journalistic activities and journalistic sources written into the Bill. This includes prior notice, inter partes hearings, tougher conditions, judicial authorisation for use of the sweeping powers by any agency.

The NMA, Guardian News and Media and Media Lawyers Association have submitted written evidence to the Bill Committee. Amendments have been tabled by Labour and SNP. In the Public Bill Committee on Tuesday Keir Starmer urged the Government “to consider how and where on the face of the Bill it is appropriate to properly protect journalistic material.”

Referring to powers to intercept communications, the former DPP and Labour spokesperson said: “On the general principles, the first thing to say about journalistic material and communications sent by or intended for Members of this Parliament and other relevant legislatures is that the protection is not for the benefit of the journalist or the Member of Parliament but for the wider public good.

“One of the difficulties with clauses 24 and 25, but particularly clause 24, is that there is simply no reference in the Bill to any special protection for journalists in relation to intercept warrants…there ought to be something in the Bill that recognises the special need to protect confidential journalistic material that is held in confidence.

“That is not recognised in the Bill, and it is not good enough to have it in a code of practice. I urge the Solicitor General and the Minister for Security, to consider how and where on the face of the Bill it is appropriate to properly protect journalistic material. Of course clause 68 makes special reference to journalistic material, but that is strictly confined to communications data and does not apply to interception or to wider powers in the Bill…I invite the Solicitor General to reflect on its principle and engage with us in putting something into the Bill that properly recognises and protects journalists.”

He went on to stress the importance of protection of journalistic sources, adding: “Can I ask the Minister about journalistic sources? I am concerned that there is nothing about them on the face of the Bill. He will know how anxious journalists are about this. Will he consider whether something should be put on the face of the Bill? There is an inconsistency: in other parts of the Bill, such as clause 68, there is express provision relating to journalists. There is something in the code of practice, but there is nothing on the face of the Bill, which is the problem. Without committing himself to a particular form of words, will he commit to considering one and perhaps liaising with us about what form it could take?”

This was supported by the SNP spokesperson, Joanne Cherry QC. 

Replying for the Government, the Solicitor General Robert Buckland stated: “I cannot commit the Government to a particular course of action, but let me put this on record. We are absolutely committed to the preservation and protection of a free press and freedom of expression in our democratic society. That includes the ability of sources to provide anonymous information to journalists, which is absolutely vital if we are to have throughput of important information that needs to be in the public domain.”

However, he suggested that the Bill and Code protections were sufficient. The  Government’s concern was to avoid a definition of journalism that might let ‘the obnoxious and repugnant activities of Daesh’ escape the law enforcement, security and intelligence services.

He continued: “At the same time, there is a danger. We must not unduly fetter, on the face of the legislation, the important work of our law enforcement, security and intelligence agencies. We live in an age of constant blogging and other social media tools. Journalists themselves do not like being defined as a profession. I have been criticised in the past for using that terminology when talking about journalists, for example in the context of the Leveson process. Now, however, there are increasingly wide and loose definitions of who are journalists and what journalism is, and my worry is that that will, and does, inadvertently prevent legitimate investigation of those who are threatening our national security or who are planning to commit serious crime.

“There is a problem here. In spirit, I am absolutely with the hon. and learned Gentleman in considering the matter, but the problem with defining “journalism” is that it might be defined too tightly and narrowly so as not to include legitimate sources of information, or it might be defined unfeasibly widely and so could provide a hiding place for the sort of individuals or groups that no one in this House would regard as serving the public interest—in fact, we would regard them as acting against the public interest. For that reason, I urge great caution when dealing that aspect of the Bill.

“The Bill strengthens safeguards for journalists because it will require that all interception and equipment interference warrants, including those relating to journalists or their sources, must be approved by a senior judge before coming into force. Warrant applications will make it clear if confidential journalist information is involved. Also, a judicial commissioner will need to be notified if such information is to be obtained. We would not want a situation in which, for example, material relating to the obnoxious and repugnant activities of Daesh somehow fell into a category that we would regard as wholly inappropriate. For those reasons, I invite hon. Members to withdraw the amendment.”