(7 years, 11 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, we come now to the general duties in relation to privacy, which at least two noble Lords have referred to as the backbone of the Bill. I acknowledge, from these Benches, how much progress has been made with this issue and how welcome Clause 2 is. However, that does not deter us from being ambitious to pursue it to what we might see as perfection.
Amendment 5 would provide that any decision or action undertaken under the Act by a public authority should be subject to Clause 2. If it is not to apply, the Government should explain and justify that non-application to the Committee. I appreciate that this clause has a rather different genesis from most of the Bill. I hope it does not sound arrogant—it is certainly not meant to—if I say that it is an exceptionally well and helpfully drafted Bill. It has more definitions in it, more easily found, than any other Bill that I can recall. Most of it is extremely clear, but I have a problem with some of the content and drafting of this clause. This may be because it has come together through a different route, because of the input from debate in the Commons and outside.
If amended by Amendment 5, Clause 2(1) would not be specific about where the duty applies. I ought to give an example, although this might not be a very good one because a telecoms operator is not a public authority. It occurred to me that although an operator would have a duty to comply with a notice, under Clause 62, they should not have to make the assessment in the way the clause requires. Even if that is a bad example, we could be told that Clause 2(3) would apply to that and that it is not relevant. I will come back to that, but one should say so. Clause 63, the next one on from the one that I picked as an example, is about the filter. I struggle to see whether that comes within Clause 2(1)(d). It should. My overall question is whether Clause 2 is as stiff a backbone as it can be.
Amendments 6 and 8 deal with a provision to which the noble Lord, Lord Janvrin, has referred, which is whether what is sought to be achieved could reasonably be done by “other less intrusive means”. My amendments would make that provision stand alone, not subject to the discretionary “have regard to” which introduces Clause 2(2). This is particularly important in connection to privileged communications, and indeed it came up in a meeting with the noble and learned Lord, Lord Keen, on Thursday, which, when we were assured in the context of legally privileged material that if a less intrusive means could be used it would be, was very helpful. This was what made me think about “have regard to”. My noble friend Lord Lester used the term “rubbery” of “have regard to”. In previous incarnations of this reference to “less intrusive means” there has been an absolute rather than a discretionary requirement, so I would be grateful for help on this, about which I feel particularly strongly.
Amendments 7, 10 and 11 are about the hierarchy, if one can say that there is a hierarchy within Clause 2, of which considerations are subject to what. Those taking decisions might welcome having some scope for consideration, but if the clause is circular—there have been times when I have thought that it is—it is our job to straighten it out. Clause 2(2) is subject to Clause 2(3). Clause 2(3)(a) says that the duties apply in so far as,
“they are relevant in the particular context”.
I cannot quite decide if those words are necessary. If a duty is not relevant, does one have to say so? Also, in particular, does “relevant” introduce an element of judgment, which would weaken the application of this?
Clause 2(3)(b) says that the duties “are subject to” particular considerations listed in Clause 2(4). Clause 2(4) takes precedence over Clause 2(2)—or does it? In addition Clause 2(4) suggests that there are considerations that are not listed. Given the importance of this clause I think that this should be addressed. To the extent that noble Lords have managed to follow that—I am not entirely sure that I did throughout—I hope that I have at least demonstrated that we think that there are potential problems in the construction of the clause.
Amendments 9 and 13 would make the Human Rights Act overarching. I might be told that because it falls within Clause 2(3)(b), to which Clause 2(2) is subject, it is not necessary to separate it out. If that is so, it reinforces the arguments that I have just made on the previous clutch of amendments. We might be told that not everything in the legislation is absolute and that certain rights are qualified, but my amendment would not affect that. I am really after clarity and certainty. The Human Rights Act is so important in this context that it should be expressed as applying in its own terms and not be demoted to being a particular consideration.
Viscount Hailsham (Con)
I reinforce what the noble Baroness has said with regard to Clause 2(4). The first line—
“The other considerations, may, in particular, include”—
means in effect that the criteria and considerations set out are open-ended. While the public authority may have regard to any of the considerations set out in Clause 2(4), it can also have regard to any other considerations that it deems fit. That seems a very unsatisfactory state of affairs.
Lord Lester of Herne Hill (LD)
My Lords, I put my name to a couple of these amendments and I would like to speak to them. Under our constitutional arrangements, the Human Rights Act is the next best thing that we have to a constitutional guarantee of fundamental rights and freedoms. The Minister has rightly put his name on the front of the Bill, stating that in his opinion it is compatible with the convention rights. I have put my name to these amendments to seek to make sure that what the Minister has put on the face of the Bill becomes transparently clear in the statute when it is enacted.
Article 8 of the convention, which guarantees the right to personal privacy, indicates that any exception must be provided by law—that is to say, satisfy legal certainty—and by the principle of proportionality, and that any interference must be necessary and no more than necessary to safeguard other compelling public interests. The problem with the Bill as drafted is that it does not go quite far enough to ensure full compliance with the Human Rights Act and with Article 8 of the convention. That is why the amendments in the name of my noble friend Lady Hamwee are needed, in my view. First, it is important not merely to have regard to but to make sure that there is full compliance with the principle of proportionality. That is what these amendments seek. Secondly, without repeating what has already been said, it is very important that the obligations on public authorities—for example, not to use the powers listed in Clause (2)(1)—are no more than what,
“could reasonably be achieved by other less intrusive means”.
That is classic principle-of-proportionality language.
I very much hope that in one way or another the Government will come to accept these amendments or something very similar to them so that we can make sure that lawyers like me are not able to go to court to challenge all of this under the Human Rights Act, but that Parliament gets the statute clear to put beyond doubt the application of the principles of legal certainty and proportionality, which is what these amendments are designed to do.
I will say just a word about Amendment 14, not because I want to make an elaborate statement about it but because, as I said at Second Reading, it is very important that we have a board or commission with the requisite powers. I will come to that in later debates on the Bill.
Lord Strasburger (LD)
My Lords, I will speak briefly to Amendment 14. We have already heard at length that, in its report on the Bill, the ISC called for a “backbone” of privacy to be inserted into it. The Home Office’s initial response was to add one word to the next version of the Bill: it inserted “privacy” into the title of Part 1 so that “General protections” became “General privacy protections”—nothing else changed. Later, under some pressure in the Commons, Clause 2 came into being, which goes some way, but not all the way, to inserting the privacy protections that we on this side of the Committee feel are needed.
This episode suggests to me that no one in the Government has a brief to speak up for privacy and civil liberties when legislation is being formulated. Presumably, that is why the Home Secretary included Section 46 in the Counter-Terrorism and Security Act 2015, giving her the power to establish the Privacy and Civil Liberties Board. The only problem is that she has not commenced this power and the vacuum in privacy protection advocacy in government is still there.
Amendment 14 would force the Home Secretary’s hand so that she must get on with it—actually, to be more precise, her successor must get on with it because she probably has bigger fish to fry as of Wednesday. For now, this is simply a probing amendment. If it were brought back on Report, it would probably need some improvement in terms of the board’s scope and powers. The American version of this, the Privacy and Civil Liberties Oversight Board, has been very successful with a much wider brief. For now, I will be content to hear the Government’s response to the amendment as it stands.
Before I sit down, I will say a couple of words regarding the friendly fire that has been coming from behind me during this debate—rather ungraciously, I might say—from the noble Lord, Lord Carlile. He queried whether I had read Nineteen Eighty-Four and knew about its description of CCTV in every bedroom. I have, actually, but I suspect that he has not been doing his reading on security matters because, if he had, he would know about Project Optic Nerve, in which GCHQ intercepted 1 million Yahoo! users’ webcams, which effectively put state cameras into 1 million bedrooms.
Lord Carlile of Berriew (LD)
My Lords, I am not going to enter into an argument with my noble friend about the activities of GCHQ, particularly when they have been misdescribed so fully, but I will say one or two things about the merits of the amendments before us, particularly Amendment 6.
I agree with what my noble friend Lord Lester of Herne Hill said about this group of amendments, including Amendment 6, for the reasons he gave. It would be helpful if the noble and learned Lord, Lord Keen, could explain to the Committee the difference between Amendment 6 and the intention of the Government as set out in Clause 2(2)(a). If the intention of the Government is to do what my noble friend Lord Lester described, I respectfully suggest that the adoption of the wording in Amendment 6 would be more useful and more certain and, above all, as my noble friend said, would avoid unnecessary disputes about the meaning of and compliance with Article 8 in the courts.
Unfortunately, I disagree again with my noble friends about Amendment 14. I am not against a Privacy and Civil Liberties Board if the Government wish to create one. Indeed, I would rather support the creation of a board which had an overarching view of privacy and civil liberties. The board that was created in the 2015 Act is most certainly not a Privacy and Civil Liberties Board. It is a board that was intended to have some kind of oversight of interception, surveillance and other matters, and was a construct agreed as a compromise because of the nature of government at that time. I am afraid it is a glass half-full. Therefore, I urge the Government not to adopt that Privacy and Civil Liberties Board.
It is also worth saying that we have come an awfully long way in the protection of the public against unlawful intrusion by the state into their private affairs since the enactment of the Privacy and Civil Liberties Board provision, which has not been brought into force. The safeguards included in this Bill as a result of the work of my successor as independent reviewer, David Anderson, and of the Intelligence and Security Committee and the RUSI panel mean that we have a much fuller raft of protections in the Bill. In my view, they are far more beneficial and provide a great deal more than was ever going to be provided by this form of the Privacy and Civil Liberties Board. I respectfully suggest to Ministers that this amendment is entirely unnecessary.
However, I emphasise that there are genuine concerns about potential breaches of privacy and civil liberties. They are concerns about what the public sector can do and they should also be concerns about what the private sector already does. Any of us who subscribe to online groceries, books, music or other similar consumer opportunities on the internet, as I confess I do—I frequently stream music in my car from my mobile phone—probably do not realise how much we have allowed our privacy to be trespassed upon by the so-called privacy policies of large internet service providers. If we are to have a Privacy and Civil Liberties Board, let us do the whole job, not just a bit of it.
Lord Rooker (Lab)
My Lords, I will follow up the noble Lord’s point about what the public sign up to in the private sector—of course, the private sector has lobbied against part of the Bill because it has a vested commercial interest. If you sign up to PayPal, you have signed up to 36,275 words of terms and conditions. Who reads them? “Hamlet” is 30,066 words. If you sign up to Apple iTunes, you are signing up to 19,972 words of conditions; longer than “Macbeth” at 18,110 words. It goes on: Facebook’s has 11,195 words. You tick the box—that is all you do—and give these companies access to your information. These companies would never have been able to start in other societies without the rule of law—we all know that. They can only operate in open, democratic societies. You sign away all kinds of things. We know there was a test at one time when someone changed the terms and conditions to an agreement to give away their firstborn and people ticked the boxes, because they did not read them.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for explaining the purpose of this group of amendments. I am particularly glad that Amendment 5 gives us the opportunity to look carefully at the intention of subsection (1) in the privacy clause. Perhaps I could just clarify.
Clause 2(1) lists in some detail the functions that a public authority may discharge under the Bill that may result in an interference with an individual’s privacy or impose an obligation on a telecommunications operator. The clause as drafted makes clear that, when taking such a decision, a public authority—including the Secretary of State and the judicial commissioner—must have regard to the principles set out at Clause 2(2).
The effect of the clause is perhaps not far removed from the intention of the amendment, but I would argue that the current drafting has the benefit of providing clarity. I was grateful for the complimentary remarks about the clarity of the drafting of the Bill overall that the noble Baroness was kind enough to make. The drafting of this part of the clause makes clear that the privacy clause bites in every situation in which a public authority takes a decision or action to which privacy considerations are relevant. I hope that those comments will encourage the noble Baroness to withdraw the amendment.
I am sympathetic to the spirit behind Amendments 6 and 8, which seek to prohibit the authorisation of powers in the Bill if less intrusive means are available. I hope I can provide some comfort to the noble Baroness and the noble Lord, Lord Carlile, by directing them towards the statutory codes of practice which we have published in draft alongside the Bill for the Committee to consider. For example, paragraph 4.7 of the draft interception code of practice states:
“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means”.
The codes will be submitted to Parliament for approval, and a failure to abide by them will be considered a breach by the Investigatory Powers Commissioner. I hope that that reassurance provides enough ammunition for the noble Baroness to withdraw her amendment.
Lord Carlile of Berriew
I do not want to prolong the debate, but does the Minister not think that it might be preferable to put these words in the Bill rather than face the inevitable consequences of legal discussions in the courts as to the role of codes of practice and their enforceability? Putting the words in the Bill at least provides certainty.
Earl Howe
I am grateful to the noble Lord for seeding that thought in my mind and I am glad to take it away and consider it between now and Report.
Amendment 7 also relates to Clause 2, which provides a statutory requirement that public authorities must consider all three of the privacy duties listed in subsection (2). It is not an exclusive list—there are other important principles that public authorities will have regard to—but it does make clear the principles that sit at the heart of this Bill and that underpin the exercise of functions under the Bill. And it is of course the case that the judicial commissioner will look to see whether these principles have been satisfied—when, for example, he or she reviews a Secretary of State’s decision to issue a warrant.
The noble Baroness expressed some concern about the phrase “have regard to”. In bringing forward the privacy clause, the Government responded to concerns raised by the Intelligence and Security Committee of Parliament as well as by the Opposition and the Scottish National Party in the other place. The language of “have regard to” is drawn from amendments tabled by the Opposition and the SNP in Committee. It reflects the language of Clause 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003, which was held up by those parties in Committee as an exemplar of how such a clause might operate. That is the basis on which we have included that particular form of words. In short, while I am sympathetic to the concern raised in this area—
Lord Lester of Herne Hill
I am grateful to the noble Earl. Those precedents do not amount to what is really needed, which is full compliance with Article 8 of the convention and the Human Rights Act. In my opinion—it is no more than my opinion—the words do not satisfy that, whatever the precedents relied on may be in amendments tabled in other Bills. It is no use saying “have regard to”; it is necessary to ensure that what is in A, B and C happens in practice. “Have regard to” is rubbery and illusive and will not pass muster under the Human Rights Act or the convention, in my opinion.
Viscount Hailsham (Con)
May I press my noble friend more on this point? With regard to subsection (3), there is a test of relevance. Subject to the test of relevance, it seems to me that, under subsection (4), the public authority can in effect have regard to any consideration it deems fit. Is that correct?
Earl Howe
As I have said, it is not intended to be an exclusive list. There are, of course, factors that may well be relevant and a public authority will wish to have regard to that are not included in the list. We did not intend the list to be exclusive. However, I am grateful to my noble friend and, once again, I will take advice on whether the wording quite fits the intent.
The House has a proud tradition of respect for human rights. The Human Rights Act is referred to in Clauses 1 and 2. It is the Government’s view that those references make it absolutely explicit that the obligations and protections in that Act apply to the exercise of functions under the Bill. While I am sympathetic to the intention behind Amendments 9 and 13 and I listened with care to the noble Lord, Lord Lester, as I always do, I do not think the amendments are necessary. Public bodies are already required to act in accordance with the Human Rights Act 1998. Our position is aligned. The Human Rights Act is not an optional consideration when exercising the investigatory powers in the Bill. The Government consider it unnecessary to restate the position for that reason. Furthermore, we do not want to cast doubt in other places in statute where it is not restated, as that may serve actually to undermine the strong standing of the Act and the rights contained within it.
Turning to Amendment 10, I do not believe there is a divergence in principle here; this is merely a matter of drafting. The clause sets out that a public authority must have regard to certain considerations, and that duty is subject to the need to have regard to other considerations that exist elsewhere in the law. It would be superfluous to state that public authorities must have regard to things that they already must have regard to. For example, a warrant can be issued only where it is necessary and proportionate, and this is explicit in the relevant parts of the Bill. Equally, the need to comply with the Human Rights Act is encompassed within that Act: it does not need to be restated here. I hope that provides some reassurance and that the noble Baroness will, on that basis, choose not to press this amendment.
On Amendment 11, Clause 2(2) sets out the principles that public authorities must have regard to when exercising certain functions under the Bill. It is not an exhaustive list, and subsection (4) sets out some of the other factors that may be taken into consideration. Again, I emphasise that subsection (4) does not contain an exhaustive list. There will be other principles outside this list that public authorities will need to have regard to, and we should not cast doubt over that, as the amendment would.
My noble friend Lord Hailsham questioned the use of the word “may” as opposed to “must”. The use of “may” in subsection (4) should not be taken to imply that it is optional for public authorities to have regard to the principles listed in that subsection. The law requires, for example, that public authorities must always comply with their obligations under the Human Rights Act.
There are of course some factors listed at subsection (4) that will not be relevant in all circumstances: for example, it may not be meaningful, when modifying a national security warrant, to have regard to the public interest in the prevention of serious crime. But, to be clear, the use of the word “may” does not absolve public authorities from their wider obligations under this Bill or any other legislation.
I turn now to Amendment 12. Economic well-being is of course one of the statutory purposes of the security and intelligence agencies, and the reference to it in Clause 2 is intended to reflect that—nothing more. When powers under the Bill are authorised in the interests of the economic well-being of the United Kingdom, there must be a link to national security. The language at Clause 2 does not alter or undermine that; it simply reflects the statutory purposes of the agencies. As drafted, Clause 2 provides clarity and consistency with existing legislation. Given the specific limitations elsewhere in the Bill, any amendment to Clause 2 along the proposed lines is unnecessary.
Amendment 14 is the final one in this group. Your Lordships’ Committee is in no doubt of the importance of the office of the Independent Reviewer of Terrorism Legislation. David Anderson QC, who has occupied the role since February 2011 and whom both my right honourable friend the Home Secretary and I hold in the highest regard, does an excellent job of reviewing key counterterrorism statutes. His independent oversight and recommendations help us to ensure that our counterterrorism legislation is fair, effective and proportionate, and that it strikes an appropriate balance in the face of the very real and serious threat we face from terrorism.
Following the passage of the Counter-Terrorism and Security Act 2015, the Government undertook a consultation on whether David Anderson would benefit in his role from the support of a privacy and civil liberties oversight board. Having been informed by a public consultation on the board’s establishment, by David Anderson’s own recommendations on this matter and by the need to ensure the best value for public money, the Government decided that they could most effectively support the reviewer in discharging his statutory functions by instead providing him with specialist legal assistance in the form that he recommended in his July 2014 annual report.
Lord Lester of Herne Hill
I promise not to speak again on any amendments until we reach those covering legal professional privilege, as I do not intend to be even more of a human rights bore than I am at the moment. However, before the Minister sits down, since he has the great advantage of not being a lawyer, may I explain why the Government need to think again about the language that is being used currently?
The problem is that any mismatch between the wording of the Bill and the convention or the Human Rights Act would lead, necessarily, to a legal challenge, which would go probably all the way to the Supreme Court. At the end of the day, the court will say that it cannot do much about it, because the Act is clear, but that it will give a declaration of incompatibility. That will then cause the Government of the day to have to decide what to do about the language—whether they amend it or let it go to Strasbourg.
I want to avoid all that. Every time I see something in the Bill that seems to me to be a mismatch—for example the part which suggests that there are other unspecified relevant circumstances, which seems to violate the principle of legal certainty—I think, “Oh dear, this is going to lead to litigation and to a challenge”. I am begging the Government to make absolutely sure that the language of the Bill as it leaves this House cannot be challenged as being a mismatch with the European convention and the Human Rights Act.
The problem with the Human Rights Act is that it allows those challenges, quite rightly, to be made, along with declarations of incompatibility. That is why I really hope, when the Bill comes to Report, we can have language which, if not identical to these amendments, will achieve that objective.
Earl Howe
My Lords, I am grateful to the noble Lord for expressing his expert opinion so clearly. I can undertake only to study carefully what he has said between now and Report. Clearly, the Bill has been drafted by expert hands, but I am the first to say that there is no monopoly of wisdom on the Government’s side, and I am sure we need to taker full account of what he said.
Baroness Hamwee
My Lords, one of the things that we are saying is that because the Bill has a mixed heritage, it is perhaps not as clear as it could be and does not have the benefit of the expert work to which my noble friend referred. I am clearly going to have to read very carefully what has been said, but I want to make a few comments now.
First, I am grateful to the noble Viscount, but I do not think what he was saying was quite as the noble Earl put it with regard to the word “may”. We need to come back both to the “may” and the “other considerations” in particular and to the relationship between the subsections. That fact that the list in subsection (4) is not exclusive makes the matter even more difficult.
I obviously do not want to go over all the ground again. With regard to the privacy and civil liberties board, it was of course a construct—a compromise—but my noble friend Lord Strasburger’s point about somebody having the responsibility to make sure that privacy and civil liberties are right at the top, immovably in the agendas that the Government may have, is an important one. I, for one, would welcome something more than was in the Act.
I agree that listing where the duty bites does help clarity and transparency, but I had a difficulty in being completely certain that it bites on everything that I think it should; the filter in Clause 63 was my example. If the filter is part of granting, approving—obviously not—or cancelling an authorisation, that is fine, but it should be clear. I am afraid I am not hugely persuaded by a code of practice, since it is not primary legislation. In fact, I think the Minister said that we should have regard to it. If it provides that these matters are absolute, rather than discretionary, then the codes of practice will not be consistent with the primary legislation, and that will be a bad thing.
I come back to whether this clause has been invented here, or wherever it has been invented. I will offer to supply the hot towels for everybody—I might even provide cake—but this is a provision that would benefit from further discussion. I certainly do not offer not to bring it back on Report—I might if we can get to somewhere that satisfies all of those who are clearly concerned before then—but for the moment, I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick (LD)
My Lords, my noble friend Lady Hamwee and I have Amendments 19 and 66 in this group. The relevant part of Clause 4 that we are talking about here deals with the definition of “interception”. Clause 4(1)(b) talks about interception being,
“to make any content of the communication available, at a relevant time”.
It is the expression “at a relevant time” that we wish to probe. Clause 4(4) describes “relevant time” as being during transmission, or before or after transmission. For us, that begs the question: what does “relevant time” therefore mean? Why does it have to be stated that “relevant time” is necessary, bearing in mind that it seems to cover every time before, during and after transmission?
I turn to Amendment 66. Clause 42(1) talks about interception being effectively lawful if both,
“the sender and the intended recipient … have each consented”.
This amendment simply suggests that that consent should perhaps be in writing. I beg to move.
Viscount Hailsham
My Lords, I would like to raise two points, if I may, about Amendment 66. I entirely agree with the suggestion that the consent should be in writing, and I would rather hope that the Minister will give us some reasons why it should not be, because on the face of it, it is an extremely sensible suggestion. As we all know, there is sometimes a certain degree of opaqueness regarding what people have or have not done. Looking at Clause 42, to which Amendment 66 applies, I have some difficulty in understanding the relationship between subsections (1) and (2). I am not sure why subsection (2) is there, given the language contained within subsection (1). Perhaps my noble friend can help us on that.
Baroness Hayter of Kentish Town (Lab)
My Lords, I wish to speak briefly to Amendment 68, which is in my name and that of my noble friend Lord Rosser. Clause 45(1)(a) permits interception by a Revenue & Customs officer under Section 105 of the Postal Services Act 2000. That is the provision that contains the power to open postal items, so that is clear enough. However, Clause 45(1)(b) permits interceptions by, again, a Revenue & Customs officer under the same Section 105 “and another enactment”. It is the phrase “and another enactment” that I am not quite clear about. If Section 105 is sufficient, why add the words “and another enactment”? If it calls on some other law in order to legitimise this activity, should that not be detailed in the clause? Amendment 68 therefore proposes deleting the second arm—the “and another enactment” bit—unless the Minister can make some sense of it for me.
Earl Howe
My Lords, let me turn first to Amendment 19. Clause 4 defines interception. It provides greater clarity in relation to the activity that constitutes interception than is currently the case under the Regulation of Investigatory Powers Act 2000—RIPA—and responds to calls from a number of quarters that such clarity is necessary. “Relevant time” is defined in Clause 4(4) to make clear that the interception offence can be committed at any time while the communication is being transmitted, or while the communication is being stored. Under RIPA, it is an offence to intercept a communication in the course of its transmission by means of a public telecommunications system. There had in the past been some uncertainty as to the scope of the offence; for example, whether a voicemail message stored by a telecommunications system was still in the course of its transmission, and therefore whether to access it without lawful authority would engage the offence of unlawful interception. The revised definition of interception in Clause 4 is intended to make clear that messages stored in or by the telecommunications system are caught within the definition of interception, and therefore cannot be accessed without lawful authority. This puts beyond doubt, for example, that so-called phone hacking constitutes unlawful interception.
If the Bill were amended in the manner suggested, it would, I believe, undermine the strong safeguards that the Bill provides for the protection of private communications. It would cast doubt over whether access to stored communications without lawful authority would engage the criminal offence, and it would be less clear when a public authority required a warrant to intercept communications.
Amendment 66 is not necessary and would be very difficult to implement in practice. Clause 42 simply makes clear that where both parties to a communication have consented to the communication being made available to a third party, this does not constitute unlawful interception. The Bill already requires that consent must be given in such instances for it to be lawful. On the example of a telephone call, plainly it would not be practical to write to an individual seeking their consent before continuing with that call. I hope that the noble Lord will not press that amendment.
I turn to Amendment 68. Clause 45 relates to the power of HM Revenue & Customs to inspect postal items to ensure that contraband or illegal items are not being imported or exported from the country. This clause is vital in countering terrorism and preventing and detecting serious and organised crime. RIPA was amended by the Policing and Crime Act 2009 to put beyond doubt that the protections from interception afforded to postal communications in RIPA did not restrict this vital Revenue & Customs power to check international postal traffic. This clause simply maintains this position. I hope that I have been able to provide some reassurance as to why this provision is necessary.
Viscount Hailsham
Could I press my noble friend a little more on Amendment 66? Of course I understand that there will be circumstances when written consent cannot be made, but there will be many other circumstances when it can be obtained. I note, for example, that it involves the consent of both parties. That suggests that it happens some time before the interception takes place. I should have thought it perfectly possible to have a proviso that the consent should in general be forthcoming and evidenced in writing, but that there should be a disapplication in urgent situations. In dealing with that matter, can my noble friend help me as to why we have subsection (2) as well as subsection (1) of Clause 42?
Earl Howe
My Lords, I am very sorry to have to disagree with my noble friend about the consent in writing, which would be likely to result in completely impractical situations. It is not clear what real advantage would be gained. In any case, most of the time, prior consent in writing would simply not be an option. Taking the example again of a telephone call, it is difficult to see how the normal transaction of business would not be completely impeded if we insisted on this provision.
I shall endeavour to respond to my noble friend about his question on subsections (1) and (2). I do not have a ready interpretation to give him now but, if I can during the proceedings, I shall do so.
Lord Grabiner (Non-Afl)
The language is pretty clear. Subsection (1) of Clause 42 suggests that consent of both is required, while subsection (2) refers to the consent of the recipient alone.
Baroness Hayter of Kentish Town
Could the Minister write on the amendment to Clause 45(1)? I was absolutely not suggesting by the amendment that the right would be lost for Customs & Revenue to intervene—it was about whether it needed to be under both Section 105 and, as it says,
“that section and another enactment”.
It was the clarity of the words “and another enactment” that I was asking about. I would be quite content to have a letter to clarify that point.
Lord Paddick
My Lords, I am very grateful to those who have contributed to this short debate, and very grateful to the Minister. On Amendment 19, I think that I am right in saying that the issue around phone hacking was on whether a voicemail that had not yet been listened to was still in the course of transmission, whereas a voicemail that had already been listened to was not in the course of transmission. That was a reason that the police gave at one stage for not investigating some of the phone hacking. I find the wording rather curious. I should have thought that it would be sufficient to say that communication included communication stored prior to or following transmission. But I am not a lawyer—I accept that.
I accept what the Minister says on written consent, on Amendment 66, but surely there are other ways in which consent can be explicitly given. For example, if a telephone conversation was being recorded, both parties to that conversation could say on tape, as it were, that they consented to the interception of that conversation. Perhaps we could give that some further consideration. I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, the amendment is in relation to the mandatory use of equipment interference warrants. The wording of the relevant section says that security services must secure an equipment interference warrant if the “intelligence service considers that” the conduct would constitute an offence under the Computer Misuse Act. Surely, it must be something more than just whether the particular intelligence officer considers that the conduct would constitute an offence under that Act. Surely, an equipment interference warrant must be obtained because, otherwise, it would constitute an offence, rather than simply if the intelligence service considers that it is.
Amendment 24 makes a similar point about restrictions on the use of Section 93 of the Police Act 1997. In this case it states that a “targeted equipment interference warrant” is required,
“if the applicant considers that the conduct would … constitute”,
an offence under the “Computer Misuse Act 1990”. I would argue that exactly the same considerations apply as with Amendment 23. I beg to move.
Earl Howe
My Lords, the amendments in this group seek to change the language used in relation to the equipment interference regime and Computer Misuse Act offences. Clause 13 provides that an equipment interference warrant under the Bill is mandatory if the intelligence service considers that the conduct would constitute a Computer Misuse Act offence and there is a British Islands connection. Similarly, Clause 14 provides that law enforcement agencies will be unable to authorise this type of equipment interference under the Police Act 1997 where the applicant considers that the conduct would constitute an offence under the Computer Misuse Act. This is an important safeguard.
The language in Clauses 13 and 14 reflects the fact that at the point of application the equipment interference agency may not be able to say with complete certainty whether the proposed interference will constitute an offence under the Computer Misuse Act. For example, when an MI5 officer is handed a compact disc by a source, it may not be clear whether the disc belongs to the source who intends the officer to use the disc, in which case the Computer Misuse Act would not be engaged, or whether it is owned by another person who does not intend the officer to access the disc, in which case the Computer Misuse Act would be engaged. In these circumstances, the applicant will need to consider the possibility of an offence occurring, consult legal advisers, where unclear, and seek the appropriate authorisation, if required. The language of the Bill reflects that it may not be certain whether the Computer Misuse Act is engaged. The language in the Bill and the code of practice anticipate that applicants will err on the side of caution.
Finally, and crucially, all equipment interference will be overseen by the new Investigatory Powers Commissioner, ensuring that there is independent and objective analysis of any decision regarding the possibility of conduct constituting an offence under the Computer Misuse Act. I hope that explanation will be helpful to the noble Lord and explains why this language is in the Bill. I therefore invite him to withdraw the amendment.
Lord Paddick
I am very grateful for that explanation. I understand that it may not be certain that something constitutes an offence under the Computer Misuse Act. Where it is an offence under the Computer Misuse Act, does the Bill allow a Security Service agent or law enforcement officer to ignore that provision?
Earl Howe
That cannot happen. Without a valid lawful authority, interference with equipment that is prohibited by the Computer Misuse Act will remain illegal. If a member of an equipment interference agency considered that no Computer Misuse Act offence would be committed before beginning an operation but later determined that an offence was likely to be committed, they would be required to seek appropriate authorisation.
Lord Paddick
I am very grateful to the Minister. I beg leave to withdraw the amendment.
“Protection for journalistic sources, materials and activities
(1) Save in the exceptional circumstances identified in subsection (2), the regimes provided for by Parts 2 to 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 relating to journalistic information, 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,(b) immediate action is necessary, and(c) the relevant investigatory powers under the regimes provided by Parts 2 to 7 can be used lawfully having regard to those provisions.(3) In any case where the regimes provided for by Parts 2 to 7 are disapplied by subsection (1), 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 to 7.(4) An application for an order under subsection (3) shall be made on notice to the media organisation affected unless the judge determines that an application without such notice is required in order to avoid prejudice to the investigation.(5) Paragraphs 7 to 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 to the Police and Criminal Evidence Act 1984.(6) Criminal Procedure Rules may make provision about proceedings under this section where the judge determines that an application without such notice is required.(7) A judge may only make an order under subsection (3) if the person making the application has convincingly established that— (a) the order is directed towards one or more of the legitimate aims specified in Article 10.2 of the European Convention on Human Rights,(b) there is an overriding public interest necessitating the order,(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.(8) The costs of any application under subsection (3) and of anything done or to be done in pursuance of an order as a result of the application is to be at the discretion of the judge.”
Viscount Colville of Culross (CB)
My Lords, I declare an interest as a producer and director at the BBC.
The protection of sources of journalistic material has been talked about in the other place and in your Lordships’ House. Maintaining the trust of these sources is crucial to enabling the important role that is played by the free press in exposing wrongdoing in private and public institutions. That must be in the public interest. There is a difference between the public interest and what the public is interested in.
This Bill curbs the collection of journalistic material in violent and difficult situations, such as riots or demonstrations that turn violent. I very much welcome Clause 2, which covers privacy. That concerns all citizens. This amendment asks for an extra protection for sources of journalistic material and information across the powers of the Bill. It responds to noble Lords’ concerns about the difficulty of defining a journalist. In Clause 73, the words “journalistic material” are used. The amendment uses the same concept and refers to:
“Protection for journalistic sources, materials and activities”,
using the definition of journalistic material set out in PACE. This definition can be used as a basis for decision-making by the carefully trained and very experienced judicial commissioner who is charge of this process. The commissioner will decide what is journalistic material and what is not. I am sure that the public interest—again, rather than what the public are interested in—will be the most important criterion. This would mean that PR communications, which are for commercial benefit rather than public interest, will be excluded. Likewise, it would exclude fundamentalist bloggers who are clearly sending out propaganda whose material could never pass the test of public interest.
I know the Minister is concerned that free speech should flourish and that sources who provide this journalistic material do not feel that they are unnecessarily being surveilled by the authorities using the extraordinary powers available in our digital age. I am grateful to the Government for listening to these concerns, and I welcome the safeguards provided in Clause 73 for the protection of sources of journalistic information in the power of communications data.
Amendment 25, however, aims to extend those protections for sources to the other powers set out in the Bill. I am particularly keen for the power for targeted equipment interference to be covered by a safeguard for sources. This could be material owned by the journalist or the source who is giving the information. Targeted equipment interference includes the ability to use a mobile phone’s microphone as a bug. It could also include looking at a journalist’s electronic notebook and at footage shot in the course of a story, which, as a broadcast journalist, worries me a lot.
I note that there are thresholds in the Bill for issuing this kind of warrant, which include national security and serious crime. The definition of serious crime is explained in Clause 235. Paragraph (a) states that it has to be an offence for which someone,
“could reasonably be expected to be sentenced to imprisonment for a term of 3 years or more”,
but paragraph (b) states that it is where,
“the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose”,
I am worried that the definition in paragraph (b) is very wide and represents too low a threshold. It includes any conduct that,
“involves the use of violence”,
and,
“conduct by a large number of persons”,
and therefore includes the classic case in which the police try to get hold of footage filmed at public demonstrations. Violence is a very wide concept. If serious crime was limited to paragraph (a) or to indictable offences only, there might be a point, but allowing the definition of serious crime to cover any violence by a large number of persons is too low a threshold and would get round the tried and tested means of accessing information through PACE.
I know from experience that journalists are often seen by demonstrators and rioters as extensions of the authorities. This process started abroad, but it is now often seen in this country. As a result, we are seeing journalists targeted for taking footage of riots or violent behaviour. This is a dangerous trend, which we should all try to prevent. In the Dale Farm case, when the police wanted to see footage from Sky News, the judge ruled that the request posed a danger to broadcast journalists. He said:
“If the perception takes hold that such people are working on behalf of the police, or are likely to co-operate with them by supplying such material routinely, life could become very difficult. They might find it more difficult to obtain access to areas where demonstrations are taking place or to work in the vicinity of those who are prone to violence. Moreover, at its most acute, the perception could increase the risk of violence towards cameramen or their equipment”.
I ask the Minister to look again at the Bill and to extend the protection for journalistic material across the powers. This provision would ensure that the judicial commissioner would be asked to look at warrants and would have to bear in mind the safeguards needed to protect journalistic sources.
Proposed new subsection (4) asks for notice of a warrant request to be given to the media organisation, unless there are exceptional circumstances, such as a great emergency or when immediate action has to be taken. This is important so that it can explain the dangers involved in exposing the source. I understand that, as the Bill stands, the judicial commissioner, if concerned about the dangers of a warrant being granted to the journalist and the dangers this might pose to the journalistic source, will have the right to ask for more information. My fear is that they might not have been given all the facts by the people requesting information. It might just be that the person making the request is not even aware of the danger to the journalistic source from exposure to surveillance.
I quite understand the fears of the Government that notification to a media organisation might defeat the whole purpose of the exercise, but PACE covers the physical property of journalistic information and gives a right of notification so that the application can be challenged. PACE, however, dates back to 1984, when the internet was still a glimmer in the eyes of Sir Tim Berners-Lee. We never imagined the presence of digital information in worldwide communications at the press of a button. Mobile phones, computers and the internet are the notepads of the 21st century. The Bill is a wonderful recognition of the changing way in which we communicate, and it covers this. Surely this amendment is an opportunity to update the notification section of PACE to cover the equipment of our age that is used to gather journalistic information.
The amendment suggests that notification should be given through the media organisation. In the vast majority of cases, the application will relate to a newspaper or broadcaster, and a lawyer will be available for the news outlet in either broadcast or print. In-house lawyers regularly receive sensitive information, such as orders from family courts, privacy injunctions and super-injunctions, and are well able to handle sensitive information such as police requests for footage under PACE or the Terrorism Act, or indeed any police request. So I do not think handling such a request will be an issue. If there is a concern about the media organisation or the journalist involved, we should talk about the judicial commissioner being involved and helping make that decision.
I understand that noble Lords are concerned that there could be false claims of journalistic sources, which could be used to prevent a warrant. I suggest that the journalist would have to sign a witness statement that the claim is true; if found not to be, they would have perjured themselves and be subject to the might of the law. Once again, in this issue the judicial commissioner would have an important role to play. They would use their experience and training to decide whether the recipient is noteworthy or not.
The amendment represents very important safeguards for free speech in our country. I know that the Government greatly support this principle. I urge the Minister to consider carefully the changes to the Bill set out in the amendment and I beg to move.
Lord Black of Brentwood (Con)
My Lords, I support Amendment 25, moved by the noble Viscount, Lord Colville. I declare my interest as executive director of the Telegraph Media Group and draw attention to my other media interests in the register.
As the noble Viscount has said, the issue of the confidentiality of journalists’ sources has been a leitmotiv during the obsequies of the unloved Regulation of Investigatory Powers Act and throughout the passage of this Bill, during extensive pre-legislative scrutiny, in all its stages in the other place and now here in Committee in your Lordships’ House. But we are now nearing the end of it all and so this is probably our last opportunity to get it right. It therefore deserves the closest and most thorough attention.
I doubt that there are many here who need persuading about the importance, in a free society, of the protection of sources. The arguments were most formidably summed up in the case of Goodwin v United Kingdom in a famous ruling in the European Court of Human Rights some 20 years ago, which stated:
“Without … protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected”.
The protection of sources is crucial for investigative reporting, whistleblowing and indeed free and unfettered political debate. Without adequate protection, investigative journalism becomes almost impossible, whistleblowers do not come forward to the press and wider media to alert them to issues of public interest, and political debate becomes sterile and bland.
Your Lordships should not underestimate the difficulty already faced by journalists in getting confidential sources to speak on matters of often profound public interest. There has been so much attention given in recent years to the way in which sources have been exposed through surveillance and the misuse of anti-terrorist legislation that it is becoming harder and harder to get sources to come forward. Some even fear for their lives because they could easily become targets themselves if it became known that they had co-operated with a reporter. It is not an overstatement to say that, on occasion, the protection of sources can be a matter of life and death. That is why we must take with the utmost seriousness the passage of any legislation in this House which damages free expression and undermines the protection afforded to confidential sources by opening up the possibility of the state being able to shadow the work of journalists, track what they are up to, identify their sources and see what information they have made available.
I know that the Government are acutely aware of the importance of this issue and have listened with great diligence to the concerns of the media and others. I am very grateful to them for the action that they have already taken to strengthen the Bill in this regard, and the amendments in the other place are a very welcome step in the right direction. Unfortunately, I do not believe that they have yet gone far enough. Yes, there are safeguards, and they are very welcome. But they are not strong enough, and above all they will not work properly, and that is what this amendment is all about.
As I have said, this is a matter of real and urgent concern to the whole of the media—publishers, editors, trade unions, the national and regional press, magazines, broadcast and digital—and there has been unprecedented co-operation among interests which are often competing. The reason for this level of unity is, I am afraid, a profound sense of déjà vu. During the passage of RIPA back in 2000, a similar coalition of interests, led by the Newspaper Society, warned that its wide terms and lack of adequate safeguards would inevitably lead to the undermining of confidentiality of sources. The industry warned that the number of organisations which could use RIPA powers should be limited and that the grounds for the use of those powers should be more strictly limited. The industry was repeatedly told that it was crying wolf and that there was no way the Bill could be so abused. On 6 March 2000, Jack Straw, then Home Secretary in the other place, gave a specific guarantee on that subject.
But, of course, we know exactly what happened. We have heard of, and seen, numerous examples where local authorities and the police then subsequently used RIPA powers of surveillance to access phone records to crack down on whistleblowers talking confidentially to the press; and it has often been the local press, who are the guardians of local democracy and accountability, who have been in the firing line. In one case, involving the Derby Telegraph, a local authority used RIPA powers to spy on a reporter who had been talking to council employees. In another, deeply disturbing incident, Thames Valley Police used RIPA powers to place a probe inside the car of a source who had been talking to a reporter from the Milton Keynes Citizen, Sally Murrer, and, on the back of recordings obtained, arrested the journalist and strip-searched her. In 2012, Cleveland police used RIPA powers to access the phone records of three Northern Echo journalists to try to find out the source of its coverage of a Cleveland Police internal report that revealed elements of institutional racism within the police force.
All this—and much more that we may never know about—happened despite protestations from the then Government that this could not possibly happen. The reason for that, as we have seen in countless other cases of legislation involving press freedom and confidentiality of sources, is that the legislation has not been watertight, proper and comprehensive safeguards were not written into the Bill, and it has been too easy for those wanting to access sources to find loopholes through which to crawl. This mistake cannot be allowed to happen again.
It is easy to see where the problem with this Bill arises. As the noble Viscount said, yes, there are safeguards in Clause 73 relating to prior judicial authorisation, and that is welcome, but it is inadequate in a number of respects. For one thing, it governs acquisition of communications data only for the purpose of identifying or confirming the identity of a journalistic source. Crucially, it does not apply to acquisition of data for other purposes. But most importantly, it does not allow for prior notification to the media of an application to use the Bill’s powers, and the opportunity for the media to make submissions on whether this will impact on the confidentiality of a source.
It is all very well having judicial safeguards in place, but they will not work unless the judicial commissioner assessing the application has all the relevant information before applying his or her judgment and making an informed decision. After all, how can a judicial commissioner possibly know what they do not know? That is almost Kafkaesque. Without input from the media—and I recognise that there must be exceptions to this where a journalist or media organisation is under suspicion—they could not possibly, for instance, know how the use of surveillance could actually place the life of a source, or indeed of a journalist, in danger and other such considerations. In those circumstances, the important tests outlined in the Bill cannot be properly applied, and as a result the safeguards simply will not work.
Lord Stoneham of Droxford (LD)
My Lords, I support the noble Viscount, Lord Colville, and the noble Lord, Lord Black, on this amendment. I was unable to speak at Second Reading but I have spent a lifetime in the print media, so I have particular concerns on this matter.
To enable the state to access and shadow every aspect of the work of journalists and media organisations and their sources undermines press freedom, the role of the media in a free society and their ability to hold the powerful to account. I think all noble Lords would accept that that is a major concern. Such powers chill freedom of expression, inhibit sources coming forward in future for fear of potential exposure to the state, and effectively curb the press. As the noble Lord, Lord Black, said, the key issue here is the protection of sources; that is critical to the work of a free press. There is also the aspect that by not providing protection you expose journalists to danger; both reporters and photographers will become targets if it is feared that the police or other state organisations have wide access to their material.
The noble Lord, Lord Black, said in particular that there is strong evidence that the RIPA powers, which we had concerns about when that legislation went through, show the need for extra vigilance. I hope that the Government will address that in their response to this amendment. I was quite surprised to see the statistics on the number of journalists who have been subject to this legislation’s powers. We are asking for one particular power, that there should be a right not only for the judicial commissioner to authorise these inquiries but that the media organisation should be informed that those powers are being sought; otherwise, those sources have no idea what the state is up to and no concept of having the power to challenge its interpretation of the public interest. There is clearly a public interest, as regards the media organisation as well, to ensure freedom of the press.
We therefore believe that these well-established legal procedures should be provided in the Bill as safeguards for the protection of journalistic activity, while we recognise that both the courts and the UK Parliament have long recognised the necessity for proper protection of non-confidential and confidential journalistic material and sources. That is why we asked the Government to look very carefully at this stage at the legislation. We welcome the efforts that they have made so far, but in view of what has happened with the use of the RIPA powers and the need for these additional safeguards, we hope that the Minister will respond favourably to the amendment.
Lord Murphy of Torfaen (Lab)
My Lords, the Joint Committee on the Bill—four Members other than myself, who chaired the committee, are present this evening—met journalists in evidence sessions. The Society of Editors and the National Union of Journalists met with the committee on 14 December last year, and of course many strong representations were made in writing to the Joint Committee on this very subject. The committee eventually recommended that,
“the Home Office should reconsider the level of protection which the Bill affords to journalistic material and sources”.
We recommended that it should be at least equivalent to that afforded by the Terrorism Act 2000 and by PACE, and that the Home Office should take into account the various aspects of the European Convention on Human Rights which affect this aspect of the Bill. I know that the Joint Committee on Human Rights has also made representations to the Government on this matter.
I support the amendment in the name of the noble Viscount, Lord Colville. His proposed new clause deals with wider protection from state surveillance, not just sources—for example, a politically sensitive investigation—in that it covers areas other than simply communications data; for example, equipment interference, and that orders should be sought from a judge, as with PACE. I congratulate the Government, as in Committee in the other place, Clause 73 was introduced, which made welcome changes to the Bill as it then stood. However, I agree with noble Lords who have already spoken that that is not quite sufficient and more needs to be done.
The issue the Joint Committee had to deal with was how precisely you define a journalist these days. It is very different from when I was a young man. With the advanced technology, what or who is a journalist? PACE defines it in some senses in that it at least refers to “journalistic material”. A journalist is,
“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”.
Therefore we can overcome these issues.
All the speakers so far have indicated that we are grateful to the Government for what they have done, but more could be done. I do not say that the precise wording of the proposed new clause in the amendment is the precise answer to where we are going, but Ministers—both here and in the other place—have indicated to me over the last couple of months that the Government are willing to look very carefully at how to ensure that journalists are properly protected under this legislation. It is certain that there should be no lessening of protection from what already exists under PACE. I fear that it is possible that that might be the case, unless we go a little further in protecting both the sources of journalists and their investigations.
I therefore hope that, when the Minister winds up, he will give us some joy and will indicate that, by the time we reach Report, the Government will have reconsidered some of these aspects and we will be able to ensure that this particularly important part of the Bill is dealt with properly.
Lord Paddick
My Lords, my name is to this amendment and I very much support it. As a former police officer, I feel I have to speak on both aspects of this. The noble Lord, Lord Black, spoke clearly and in detail about the need for very specific safeguards because of the experience that we have had with the Regulation of Investigatory Powers Act. Police have clearly not used legislation in the way that Parliament intended it to be used—that is, to establish who confidential journalistic sources are. I also support what the noble Viscount, Lord Colville of Culross, said about the danger to journalists, particularly camera operators in serious, spontaneous public order situations. This is an area where I have some expertise. At the moment there is a balance as experience has shown that media footage has, in certain circumstances, been useful to demonstrators in terms of misuse or excess use of force by police officers. If this were to change, and the demonstrators felt that material gathered by media operators was under the control only of the police, because of inadequate provisions in the Bill, it could tip the balance and journalists would become a target for violence in such situations.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support Amendment 25 and declare an interest as the mother of a journalist. I also apologise for not having spoken at Second Reading; I was not able to be here. My only concern with Amendment 25 is that it does not go far enough and there is no “reasonable suspicion” test. We must remember that journalists often uncover some pretty heinous crimes and pretty awful stories. While we often talk about the damage they do and the crimes they commit, they also do some incredibly valuable work for our society, so I think this an extremely important amendment.
Lord Strasburger
My Lords, my name is also to this amendment. I shall not detain the House for very long. There is one aspect of this that I do not think has been mentioned: without protection for the anonymity of whistleblowers, far fewer will come forward and expose themselves to the revenge of their employers or others in powerful positions. There is ample evidence of whistleblowers being severely victimised, so anonymity is essential. Without whistleblowers, wrongdoing and cover-ups in the private and public sectors will go unreported and uncorrected, and that outcome is to the detriment to all of society, particularly those who lack a loud enough voice to be heard when things go wrong.
In recent years we have seen many cases of legislative arbitrage by the police in order to use powers that were never intended for the purpose of discovering journalists’ sources, finding ways to do so with the fewest protections. The “plebgate” scandal was a particularly graphic example, where RIPA was misused to find the source of a story in the Sun. Journalist’s phones on the Sun’s newsdesk were investigated by the police and their communications data were obtained. Under RIPA this was, of course, completely self-authorised; there were no external checks on what they were doing.
I believe that the Bill actually reduces the protection for journalists’ sources in the case of interception of communications and communications data. It provides no protection at all against the use of other surveillance powers, especially equipment interference. Amendment 25 seeks to rectify these shortfalls; I do not believe it is perfect yet, but it is a good start.
Baroness Hayter of Kentish Town
My Lords, I shall speak briefly about Amendment 148 in this group, which stands in my name and that of my noble friend Lord Rosser. It deals with what protections there should be for any journalist’s material collected as a result of any of these powers. In the case of material obtained that falls under normal rules of legal privilege, the Bill lays down the care with which such material should be treated under professional privilege. It is particularly important that the material is secured very safely, should anything from a journalist be held. Similarly for lawyers, material should secured very safely, and be seen by the fewest number of people possible. Anything that is not subsequently used in the investigation should be destroyed or returned and certainly not kept. That sort of safeguard should cover any journalist’s material, either under the Bill as it stands or as amended under Amendment 25.
The case has been made as to why it is so important to protect journalists’ sources. It encourages people to come forward to give what might be really important information to an independent source, who can then verify and publish it without the source’s identity being known. Sometimes, however, I have sympathy with people’s identity being known, when they are, for example, selling secrets they should not be to newspapers for large amounts of money. I am sorry that the noble Lord, Lord Black, was not here when we dealt with Amendment 18, as a number of newspapers have failed to work to implement Leveson. In discussion of what might constitute a journalist, perhaps anyone who works for a Leveson-compliant organisation, would be a good way of defining them. This might be the encouragement needed to bring that into being.
Guaranteeing anonymity has and always will be vital to the journalists’ profession, for the sake of those who go to them but also, as has just been mentioned, for the safety of journalists, literally hundreds of whom are killed around the world in the course of their duty. There can be little doubt that should some undesirable person or organisation think that a journalist who they have briefed or who has photographed or filmed them might hand that material over to the state, then that journalist becomes at risk. It is also essential that the use of powers that may affect journalists’ sources of information should be thought of being used only when there are exceptional and compelling reasons.
There will be times when journalists’ material gets scooped up, which is when it needs to be protected. More seriously, where journalists are being asked to hand over film or photographs, we share the desire that they should be fully protected, as outlined by the noble Viscount, Lord Colville. We hope that the Government have continued their discussion with the parties involved and we look forward to hearing an update.
Earl Howe
My Lords, this Government have been clear on their continuing commitment to protecting the free press and freedom of expression in this country. In the Commons and at Second Reading, we committed to looking at this issue further and ensuring that the balance of such protections was exactly right. I thank noble Lords for tabling this amendment and giving us the opportunity to continue this important debate. The Government have listened carefully to the debate on these issues so far, and have continued to discuss them with media organisations. I have met journalists and their representatives for a very informative discussion. This engagement has proved extremely useful all round, not least in resolving misunderstandings about the relevant safeguards provided in existing legislation.
In response, the Government tabled amendments in the House of Commons strengthening the protections in the Bill for journalists’ sources. The amendment passed on Report places an extremely strong test in the Bill where a public authority seeks to use communications data to identify or confirm a journalist’s source. This means that a judicial commissioner—that is, a serving or former high court judge—must first consider the public interest in protecting a source of journalistic information and then be satisfied that there is another, overriding public interest before approving an application.
In addition, the Government introduced a new overarching privacy clause which makes it explicit that public authorities exercising functions under the Bill must have regard, for instance, to whether what is sought to be achieved by any authorisation may reasonably be achieved by other less intrusive means. It also requires persons exercising functions under the Bill, including authorising police officers and judicial commissioners, to have regard to the public interest in the protection of privacy as well as numerous other principles that underpin the legislation. These amendments clearly spell out in the Bill some of the protections that journalists seek.
Of course, the Bill proceeds from the widely accepted position, endorsed by the Joint Committee on Human Rights, that,
“review by a judge or other independent and impartial decision-making body”,
is the most significant safeguard required to protect the confidentiality of a journalist’s source. The Bill introduces that safeguard across all warrants. It specifically provides for judicial approval of any authorisation to acquire communications data for the purpose of identifying or confirming a journalist’s source.
Amendment 25 would apply a standard set of protections across the different powers provided for in the Bill. While I commend the intention to strengthen protections, the Government do not consider this blanket approach to be the right one. The powers in the Bill are not the same; they vary both in the material that can be acquired and the level of intrusion that such an acquisition represents. That is why the Bill ensures that additional protections are applied where they are most appropriate, providing for judicial authorisation of the most intrusive powers and mandating the use of less intrusive powers where that is possible. Indeed, journalists have it made clear to me that, uniquely, they consider communications data to be at least as intrusive as content, since they allow a source to be identified. That is exactly why the Government have, also uniquely, provided for judicial authorisation of communications data requests to identify a journalist’s source.
This Government agree—indeed they forcefully advocate—that confidential journalistic material and journalists’ interaction with their sources must be protected, but that does not mean that a journalist should receive blanket protection from legitimate investigation simply because of their chosen profession. The Bill ensures that protections are applied where they are required, that those who commit a crime or pose a threat to national security can be investigated, regardless of their chosen profession, and it does so in a way which is compatible with all our ECHR obligations. I should be clear that the Bill already requires any authorisation to relate to a legitimate ECHR Article 10 aim, as part of the amendment demands.
Extending protections to all,
“activities relating to journalistic information”,
as the amendment seeks to do, brings real practical implications which the Government do not consider appropriate. For example, it is clear that the content of an interview conducted in public should not be subject to the same stringent protections as a dossier of private, undisclosed material passed by a source and held in confidence. That would render meaningless those protections which are appropriately applied to confidential journalistic material.
In addition, the amendment would mean that a journalist suspected of committing a crime could be investigated only in an emergency situation where immediate action was necessary and an order to use the powers in the Bill was obtained from a judge—that is, if the crime had already taken place and there was no immediate danger, the powers could not be used to bring that individual to justice, nor could they be used to prove that individual’s innocence. I suggest that that is the wrong approach, and that is without considering the question, which even the National Union of Journalists has admitted is extremely difficult, of defining who is and who is not a journalist in the digital age.
Finally, on the question of the key decision-maker in this process, the Bill upholds the important principle of judicial involvement. A number of bodies representing the journalist profession have argued that the only way to prevent the powers in the Bill being misused is to allow a journalist to be involved in the judicial commissioner’s decision. The Government do not agree.
Of course, our security and intelligence and law enforcement agencies will in very limited circumstances have a legitimate need to investigate a journalist or their source. Where a journalist is suspected of a crime, it is clearly not appropriate that they should be alerted to the investigation, but there is a fundamental consideration here: these powers are by their very nature covert. Requiring prior notification would undoubtedly undermine the key purpose of the powers, whose use in relation to journalists, we should be clear, is already extremely limited.
Instead, the Bill provides for a robust regime to govern the use of the powers, with a clear role for judicial commissioners in authorising and overseeing their use by public authorities. It also sets out the offences that apply in the event that any of the powers are misused and provides for a world-leading oversight regime, led again by senior and independent judicial figures. The Bill takes a reasoned, balanced approach—the right approach—to protecting the important role of the media in a democratic society. It applies protection where it is needed without unduly hampering our law enforcement and security and intelligence agencies when they truly require the use of the powers. It is on that basis that I invite the noble Viscount to withdraw his amendment.
The noble Lord, Lord Strasburger, asked about protection for whistleblowers. The Joint Committee that was convened to scrutinise the draft Bill recommended that it make it clear that members of the intelligence services can raise concerns about the misuse of investigatory powers with the Investigatory Powers Commissioner without being at risk of prosecution for breaching the Official Secrets Act—that was recommendation 61. The Government included Clause 203—now Clause 212—on the Bill’s introduction to the House of Commons to give effect to the committee’s recommendation. The Bill will allow an individual to provide information on a voluntary basis to the Investigatory Powers Commissioner without that individual committing a criminal offence or incurring civil liability. Of course, any use of these investigatory powers must be for one of the purposes specified in the Bill, such as the prevention or detection of a crime or in the interests of national security. They cannot be used simply to protect any organisation’s reputation.
Amendment 148 would apply protections designed to provide the appropriate safeguards for a specific power to entirely different circumstances. “Exceptional and compelling” is a phrase which relates to a very specific set of circumstances: those in which the Secretary of State is satisfied, and the judicial commissioner agrees, that it is necessary to issue a warrant where the intention is to acquire legally privileged communications. Such circumstances will arise only in a very restricted range of cases, such as where there is a threat to life or limb or in the interests of national security and the interception is reasonably regarded as likely to yield intelligence necessary to counter the threat.
The test which the Government introduced into Clause 73 in the other place relates to the acquiring of communications data to identify or confirm a journalist’s source. It requires the judicial commissioner to have regard to the public interest in protecting journalists’ sources and then to consider, as I explained earlier, that there is another overriding public interest before granting the request. I suggest that that is the appropriate test because it reflects the requirements of freedom of expression under Article 10 of the European Convention on Human Rights.
This amendment also seeks to apply the arrangements provided for in relation to material acquired under an interception warrant to the handling, retention, use and destruction of communications data. While I commend the intention of this element of the amendment, it is unnecessary as equivalent safeguards are already to be found in chapter 11 of the Draft Communications Data Code of Practice. This chapter provides significant detail on the handling arrangements for communications data, placing stringent safeguards around how it is held: for instance, restrictions on who may access the data and for what purposes; when the data may be disclosed; and that when it is no longer necessary or proportionate to hold the data, it must be destroyed. These are strong safeguards which provide the appropriate protections for data.
As I noted earlier, the Bill takes what I would contend to be a reasoned and balanced approach—the right approach—to protecting the important role of the media in our society. I hope that, on that basis, the noble Baroness will not press her amendment.
Lord Strasburger
Perhaps I may ask the Minister three questions. Do the Government have any problems with the way that PACE currently protects journalists’ sources? I ask this because many of the criticisms he made of this amendment with respect to potential tipping off would surely also apply to PACE. The second question is this: do the Government feel that this Bill protects the communications data of journalists as well as PACE currently does? Thirdly, what special protections do the Government say the Bill gives journalists with respect to equipment interference?
Earl Howe
My Lords, the Government are clear that the regime provided for in the Bill is not inferior to the provisions of PACE. It requires that applications be made to a court for a production order on notice to the holder of the material. In the case of communications data the whole of the material is a telecommunications provider, not a journalist. We are therefore clear that nothing in the Bill enables the investigatory authorities to circumvent the protections for journalists’ sources contained in PACE. Indeed, in 2015 the Interception of Communications Commissioner conducted a detailed investigation into the allegations that public authorities had utilised RIPA to avoid the use of PACE and clearly rejected the claim. The amendments that we have made to the Bill combined with the other safeguards for acquiring communications data mean that the relevant considerations laid out in Schedule 1 to PACE are addressed on the face of the Bill.
Viscount Colville of Culross
My Lords, I thank noble Lords across the Committee for their support for this amendment. I am particularly grateful to the noble Baroness, Lady Hayter, for pointing out the dangers to journalists that are possibly posed by this Bill and how the amendment might be able to ameliorate that situation. I am also grateful to the noble Lord, Lord Murphy, for reminding us of the recommendations of his committee. There was a worry that there was less protection for journalists under the Bill than had existed under PACE. I know that the Minister has answered the point, but obviously there is widespread concern that that is the case.
I ask the Minister to listen to the noble Lord, Lord Paddick, who after all was a senior policeman. He himself pointed out that when it comes to looking at serious crime, particularly the worries over violence in demonstrations, it is all about keeping the balance and making sure that journalists do not become a target for violence and that we protect them. I thank the noble Lord, Lord Strasburger, for pointing out the importance of keeping the anonymity of whistleblowers. Of course the whistleblower Act protects whistleblowers, but only once they have been named. What we are trying to do is to maintain their anonymity.
I thank the Minister for the discussions that we have had in the run-up to the Bill, but I ask him to look once again at the protections in place for journalists under different powers. I do not think, as he said, that we are asking for blank protections for journalists. We are asking for them to be carefully controlled with different thresholds and controls to exist in different powers. I am also sorry that the Government do not feel the need to notify journalists that a warrant is going to be issued. It would be extremely helpful and it is important in making sure that the process works better.
I hope that the Minister will at least continue discussions with us between now and Report stage about how we can extend the protections for the sources of journalistic material. For the moment, however, I beg leave to withdraw the amendment.