Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Whitaker Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th January 2021 Lords Chamber

Moved by

[Baroness Whitaker]

42: After Clause 4, insert the following new Clause—
“Commissioner approval for authorisations to identify or confirm journalistic sources
(1) Subsection (2) applies if a designated person has granted a criminal conduct authorisation for the purposes of identifying or confirming a source of journalistic information.(2) The authorisation is not to take effect until such time (if any) as a Judicial Commissioner has approved it.(3) A Judicial Commissioner may approve the authorisation if, and only if, the Judicial Commissioner considers that—(a) at the time of the grant, there were reasonable grounds for considering that the requirements of this Part were satisfied in relation to the authorisation, and(b) at the time when the Judicial Commissioner is considering the matter, there are reasonable grounds for considering that the requirements of this Part would be satisfied if an equivalent new authorisation were granted at that time.(4) In considering whether the position is as mentioned in subsection (3)(a) and (b), the Judicial Commissioner must, in particular, have regard to—(a) the public interest in protecting a source of journalistic information, and(b) the need for there to be another overriding public interest before a relevant public authority seeks to identify or confirm a source of journalistic information.(5) Where the Judicial Commissioner refuses to approve the grant of the authorisation, the Judicial Commissioner may quash the authorisation.(6) This subsection applies to all authorisations pertaining to sensitive journalistic information, material or communications data, other than when the authorising officer has a reasonable belief that any delay in the authorisation would cause an immediate threat to life, in which case the authorisation may only be granted—(a) by an official at a senior level in the agency concerned, and(b) where appropriate safeguards relating to the handling, retention, use and disclosure of the material are in place.(7) The Secretary of State may by regulations made by statutory instrument determine the appropriate agency under subsection (6)(a).(8) A statutory instrument containing regulations under subsection (7) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.(9) Any authorisation granted under subsection (6) must be reported to the Investigatory Powers Commissioner within seven days, specifying any sensitive journalistic information, material or communications data that has been obtained, or retained other than for purposes of destruction.(10) In this section “journalistic material” means material created or acquired for the purposes of journalism.”

[Baroness Whitaker (Lab) [V]]

My Lords, I speak to Amendment 42 in my name and those of my noble friend Lady Clark of Kilwinning, who regrets she cannot be here tonight, the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Marlesford. I thank the National Union of Journalists for its advice and declare that I am a former member, and that my daughter has written on the subject of the amendment.

This amendment would ensure that any new powers enshrined in the Bill did not override existing legal protections on press freedom. It seeks to maintain the protections that whistleblowers currently enjoy and to enable journalists to continue to carry out their roles. As it stands, the Bill creates an avenue to access confidential journalistic material and sources without any prior judicial oversight. I hope that this is not the intention of the Government and that the current legislative framework of protections can be maintained. I intend to seek the opinion of the House if the Government cannot reassure me.

The amendment requires that a judicial commissioner give prior approval for authorisations to identify or confirm journalistic sources. The commissioner would need to have regard for both public interests in protecting the source of journalistic information, and the need for there to be another overriding public interest before a public authority seeks to identify or confirm a journalistic source. This reflects the requirement of the Investigatory Powers Act 2016 that, when any application is made to identify confidential journalistic sources, prior authorisation is required by a judicial commissioner. Our amendment respects the contingency that there could be in some cases be an immediate risk to life. In such circumstances, it relaxes the requirement for prior approval by a judicial commissioner, so it meets government objections previously raised.

I understand that the protections enshrined in the Investigatory Powers Act 2016 honoured a commitment in the Conservative Party election manifesto. This commitment followed detailed and sustained representations by the National Union of Journalists and others. They outlined their serious concerns that compromising journalistic confidentiality and the protection of sources was undermining the ability of whistleblowers to make disclosures to journalists in the public interest, and rendering journalists unable to uphold their own ethical commitments to professional privacy.

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[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

I have received no request to ask a short question. Accordingly, I call the noble Baroness, Lady Whitaker.

[Baroness Whitaker (Lab) [V]]

[Inaudible.] I thank the Minister for her typically considered response. After such a long session on Report, I will not comment in detail on the contributions, other than to say that the Government’s response to the 10th report of the Joint Committee on Human Rights—on the general point of judicial authorisation—underestimates the capacity of people trained and experienced in the judiciary to weigh up the implications of actions within a framework of the limits that should be set on behaviour. They are accustomed to doing this with a variety of warrants. The Government’s proposal, which the Minister has not offered to modify in any way, omits the essential requirement of prior authorisation; she insists that this is vital. However, judges are used to making prior authorisations very quickly. Even magistrates are woken up in the middle of the night to approve warrants. The Minister’s objections are not strong enough to warrant my withdrawing the amendment, so I wish to test the opinion of the House.