Investigatory Powers Bill

Viscount Colville of Culross Excerpts

Monday 27th June 2016 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a producer at the BBC. I congratulate the Government on bringing this Bill before the House. Like most noble Lords I recognise that the security services need up-to-date powers in their technological battle against terrorism and criminality, and I am pleased that these extraordinary powers of surveillance will now have judicial control. I am sure that the interception of digital communications will help prevent much terrorism and that many criminals will be convicted using the evidence collected.

However, there is a whole area of information gathering which must be safeguarded by privilege. Noble Lords have spoken about the importance of privileged information between lawyers and their clients and between MPs and their constituents, so it is not surprising that as a journalist I want to put the case for extending the privilege of safeguarding journalists’ sources of information. I look forward very much to the debate in this House on defining what is serious journalism, and who and what information should come under journalistic privilege.

I appreciate that the Government inserted an amendment into the Bill in the other place requiring the judicial commissioner to have regard to the public interest consideration for requests to investigate communications data for a source of journalistic information, but I fear that this privilege is far too specific. It applies only to requests to search directly for “journalistic sources” and from only one power in this Bill: that of communications data. But there are many other powers in the Bill which could directly or indirectly identify a source. I should like the Bill to extend the public interest consideration for any request to access journalists’ data to cover other methods of surveillance, including the accessing of internet connection records and equipment interference, both of which could identify whistleblowers.

I very much appreciate the powers in the Police and Criminal Evidence Act 1984 which allowed notification to journalists and media organisations of requests to access journalists’ notebooks so that they can respond to those requests. I would like the Bill to mirror those powers in some way and to extend that notification to cover some warrants to access journalists’ data so that they and the media organisations can make representations to protect their sources. I know only too well from my own experience and that of colleagues how important it is to guarantee protection for sources when uncovering cases of wrongdoing. I am certain that in many cases we would not have the information unless the sources were convinced that they were safe from having their identity revealed to their bosses or other authorities when reporting cases of wrongdoing.

I have been speaking to a number of my colleagues who have been involved in extraordinary investigations whose publication has shocked the nation and led to changes in the law and policy, and huge reforms to the institutions that have been investigated. Two stand out for me: the “Panorama” investigations by my colleagues at the BBC into Winterbourne View care home and the Medway Secure Training Centre, both of which have been mentioned many time in your Lordships’ House.

Winterbourne View was a care home, commissioned by the NHS and managed by private providers, to care for adults with learning difficulties. The “Panorama” investigation revealed that a lack of leadership led to a regime of barbarity against the patients. I fear that, unless the programme had been broadcast, nothing would have happened to address this abuse. Margaret Flynn in her report on the home said:

“There is no evidence that the written complaints of patients were addressed … managers did not deal with unprofessional practices at Winterbourne View Hospital. Absconding patients, the concerns of their relatives, requests to be removed and escalating self-injurious behaviour were not perceived as evidence of failing service. The documented concerns of whistleblowers made no difference in an unnoticing environment”.

There were 29 contacts with the police and eight incidents of staff violence on patients were reported, with only one prosecution. The police now admit to over reliance on information from hospital management. For years, nothing was done to deal with the underlying abuse. In desperation, whistleblowers went to my colleagues at the BBC. One was later named, but others have not been to this day. Their determination to remain anonymous is not surprising, as they know that they would never work again in the industry if their names were released—but the information they gave meant that, finally, something was done to change the regime and safeguard the patients. During the “Panorama” investigation, whistleblowers were able to build up a relationship of trust with the journalists. That trust was predicated on the conviction that the authorities would not be able to identify who they were.

Likewise, whistleblowers were essential to uncovering the abuse of young men jailed at the Medway Secure Training Centre, run by a private company for the Ministry of Justice. An independent panel to investigate the centre has revealed that over seven years 35 written warnings about the regime at the centre were not acted on by the National Youth Justice Board. Once again, in desperation whistleblowers contacted my colleagues on “Panorama”. Some had previously gone to the authorities to complain and no action had been taken; others contacted the journalists directly. For most of them, and certainly the main whistleblower, whose name is still not known, the only basis on which they went to the journalist was the promise that nobody would ever be able to identify them. Their testimony and the subsequent secret filming revealed a regime of extreme barbarity against the young men at the centre, which brutalised them—the very opposite of what the centre was supposed to do. The mother of one inmate, Billy, said, “My boy is no angel, he is difficult, but this is going to make it worse”.

As a result of the Winterbourne View investigation and others into care and disability units across the country, the Care Quality Commission was reconfigured and the charge of corporate neglect entered our statutes. Safeguards for people in these units have been established across the country. As a result of the Medway exposures there have been parliamentary debates, at least 10 arrests, guards have been suspended and the unit director has resigned. G4S has announced that it is selling off its children’s services and the centre has been nationalised. These cases are proof of the extraordinary role that whistleblowers can play in revealing wrongdoing and changing our country’s landscape. As my colleague Joe Plomin, the journalist behind these stories, told me:

“We threaten the confidence with which whistleblowers contact me at our peril—how will we as journalists prevent the abuse of children or disabled people or others in future where all authorities including the police have allegedly failed, if whistleblowers feel unable to safely, securely contact us? Our democracy, all of our safety depends on people being able to speak to us where all else has failed”.

I ask your Lordships’ House to do everything possible to ensure that this Bill guarantees their secrecy and allows journalists to explain to the judge the public interest reason for that secrecy to be continued. This need is reinforced by the many occasions when the authorities, and especially the police, secretly obtained journalists’ records. The report of the Interception of Communications Commissioner’s Office in 2015 into the use of Chapter II of Part 1 of the Regulation of Investigatory Powers Act to identify journalistic sources showed that police had secretly obtained the phone records of 82 journalists over a three-year period to find confidential sources. It said:

“Generally speaking the police forces did not give the question of necessity, proportionality and collateral intrusion sufficient consideration. They focused on privacy considerations … and did not give due consideration to freedom of speech … The current Home Office Code of Practice (and the recently revised draft Code said to provide protection for sensitive professions) do not provide adequate safeguards to protect journalistic sources or prevent unnecessary or disproportionate intrusions”.

I, like all noble Lords, have the highest regard for our forces of law and order. I am sure that they will think that they have compelling reasons for investigating a journalist’s records, but I would like a judge to decide whether the reasons are in the public interest. It is important that the judge, deciding on a warrant for journalists’ data, should have to notify them so that they can at least put their case for the need for the absolute confidentiality of sources to be maintained.