Investigatory Powers Bill

Baroness Harman Excerpts

Report: 2nd sitting: House of Commons
Tuesday 7th June 2016 Commons Chamber

[Ms Harriet Harman (Camberwell and Peckham) (Lab)]

I rise to support amendments 143, 144 and 145, which were tabled in my name and those of the other members of the Joint Committee on Human Rights and relate to the protection of journalists’ sources. Since they were tabled, they have been supported by Labour’s Front Bench and the SNP, for which I am grateful.

Yesterday, we considered additional protections for MPs and lawyers and the question of legal professional privilege. Journalists are in the same group. We extensively considered protections for everybody against the abuse of power and the invasions of privacy by the state, which is right, but there are particular issues about protecting a part of the constitution from abuses of power by the Executive. The legislature obviously holds the Government to account, so it is wrong for the state to abuse its power to prevent us from doing that. The same goes for lawyers and the rule of law. Journalists are in a parallel situation in that it is vital in our democracy that the media are free to hold the Government to account, which is an important aspect of the right of freedom of expression that is guaranteed in article 10 of the European convention on human rights.

I appreciate from the start that there is a difficulty here. It is easy to work out what a lawyer is. It is easy to work out what an MP is. It is not quite so easy with journalists. Some people are evidently journalists and some people are evidently not journalists, but some people might or might not be journalists, so I say “Good luck” to the Solicitor General with that one. However, that difficulty must be surmounted, because we must ensure that the press’s ability to go about their business and to hold the Government to account is protected.

[The Solicitor General]

The right hon. and learned Lady is absolutely right to talk about the difficulty of definitions, but we should be focusing on journalistic material. That is the question at hand and that is what the Bill addresses. Focusing on that might actually help us to come to a solution.

[Ms Harman]

It sounds as though the Minister is well under way to solving that problem, so that is encouraging.

My next point was considered by the Joint Committee on Human Rights and has been echoed throughout the House. We do not want the provisions in this legislation to contain less protection for journalistic material than the Police and Criminal Evidence Act 1984 did. That Act relates to a very different world and refers to the journalist’s notebook, whereas we are considering communications data, but a key point is that the relevant journalist or media organisation is given notice when a warrant is being applied for so that they can make representations as to why one should not be granted in order to protect their sources. We are not talking about journalists who are up to their necks in criminal activity—that is not the issue. The issue arises from applications for material that relates not to any criminal activity but to a journalist’s work. Can we ensure that journalists are put on notice, because of the special status of journalistic material, so that the authorising authorities have the benefit of hearing from journalists or media organisations before a warrant is granted?

I appreciate that the Minister has already responded to those issues and has put in additional protections, such as taking the non-statutory code and putting it on the statute, but the issue of notice still remains, which is why we tabled our amendments and why they have gathered support. I welcome the Minister’s confirmation that he will look further at the matter, but other members of the Joint Committee on Human Rights in the House of Lords, and many other Members of the Lords, will want to consider it. Nobody wants an unjustified fettering of the ability of the security services and the police to keep us safe. The point in the intervention of my right hon. Friend the Member for Leigh (Andy Burnham) was absolutely spot on. We are all in favour of the same thing here, but we must ensure that, at the end of the process, we have the right balance not only for journalists but in many other respects.

[Victoria Atkins (Louth and Horncastle) (Con)]

I shall speak to new clause 18 and amendment 207. I note that these are probing measures tabled by my hon. Friend the Member for Stevenage (Stephen McPartland), and I also note the assurances given by the Solicitor General. However, given the concerns raised by the SNP, I thought it may be helpful to give some examples of how the organisations in schedule 4 need these powers and how they contribute towards the criminal justice system in our country.

We are speaking about communications data, not about bulk warrants or intercept warrants; we are discussing the who, what and when of communications between suspects. The criminal justice system sees thousands of prosecutions brought each year by the organisations listed in schedule 4. The Department for Work and Pensions prosecutes benefit fraud, and I am sure we all support it on that. It conducted approximately 600,000 investigations last year, and communications data can be invaluable, particularly in dealing with conspiracies to defraud, in showing links between conspirators and the timing of their communications.

New clause 18 excludes one of the largest and most important investigating agencies: Her Majesty’s Revenue and Customs. It investigates a huge range of offences, from tax fraud to cigarette smuggling and the criminal exploitation of HMRC’s repayment system. The seriousness of some of these offences can be summed up in the offence that I prosecuted many times on its behalf: cheating the Revenue, which attracts a maximum sentence of life imprisonment. The Joint Committee heard evidence from HMRC that last year it made 10,000 requests for communications data, which supported 560 investigations, in cases involving a loss to the Treasury of £2 billion. If that is not a serious investigating organisation that deserves our help in investigating and prosecuting criminal activity, I do not know what is.

The injustice does not end with HMRC, and I will give just two more examples, as I am conscious of the time. The Financial Conduct Authority regulates the financial markets, and the banking, financial and insurance industries, among others. In a £10 million insider dealing fraud case, in which I was instructed, we were able to build an electronic reconstruction of a day in the life of an insider dealer. It went from the moment when a memory stick was inserted into a computer to download the price-sensitive information, to the handover of the stick to a co-conspirator at another bank, to the material being uploaded on to webmail and messages being sent out to the defendants to get trading on these stocks. The FCA operates in the digital world, by definition, and it made more communications data requests last year than 20 police forces that are cited in new clause 18.

The second example, mentioned by the hon. Member for Paisley and Renfrewshire North (Gavin Newlands), is the Health and Safety Executive. It prosecutes employers who kill and maim employees and members of the public in the workplace. These are highly specialised cases, which could encompass any workplace, from building sites to chemical factories and care homes. Last year, the HSE conducted 3,280 investigations, resulting in 535 prosecutions in England and Wales.

I know that these are probing measures and that my hon. Friend the Member for Stevenage is raising important issues, particularly on access for child protection units and others, but we must not lose sight of the important role that many of these organisations play in the criminal justice system and their need for their power to prevent and detect crime.