A Liberal Democrat peer has condemned the Government after his proposed amendment to protect journalistic sources in the Serious Crime Bill was rejected by the Government.
Lord Strasburger received support from peers across all three major political parties for his amendment prompted by the Press Gazette Save Our Sources campaign, which was debated in the House of Lords last night.
But the Government has said it believes a strengthened RIPA code of practice – which still allows police officers to secretly sign-off telecoms records requests against journalists – will be sufficient to address concerns
Strasburger accused the Government of not "listening" to the debate and vowed to return to the issue "with vengeance" unless it provides a "more substantive" response.
Dubbed the "Watergate amendment" by a fellow peer, Lord Strasburger (pictured below, right) said:
The purpose of this amendment is to graft on to RIPA similar protections to those already applying under PACE: judicial oversight of applications involving journalists’ records and legally privileged information, and to require an open hearing with both sides represented. The judge will need to be satisfied that disclosure is necessary for the detecting or preventing of serious crime, and that the request for data is proportionate to what is being sought to be achieved with it. The judge will have to have particular regard to the protection of legally privileged information and journalistic sources."
Lord Strasburger's amendment was intended to ensure that police and other public authorities go through a judge to obtain journalists' phone records under the Regulation of Investigatory Powers Act (RIPA) – as is the case under the Police and Criminal Evidence Act (PACE).
It comes after the Metropolitan Police last month admitted to grabbing the phone records of The Sun newsdesk and political editor in its Plebgate leak investigation. Three officers lost their jobs as a result of the probe.
It has since emerged that Kent Police used RIPA on The Mail on Sunday, Suffolk Police on the Ipswich Star and Thames Valley Police on the Milton Keynes Citizen.
In response, Press Gazette has set up the Save Our Sources campaign, calling on the Interception of Communications Commissioner to prevent public authorities from using RIPA to secretly find journalistic sources.
Speaking for the Government, Baroness Williams of Trafford (Con) described the amendment as "unnecessary, given the strict regulation RIPA already contains". She also referred to "additional safeguards we are already putting in place".
She said communications data can only be obtained for a "specified purpose, such as preventing and detecting crime, and then only when it is proportionate to do to" and pointed out that complaints can be made to the Investigatory Powers Tribunal.
Baroness Williams also highlighted the fact that the system is overseen by the Interception of Communications Commissioner, who has now set up an inquiry into police use of RIPA.
She described the controls that apply to obtaining communications data as "one of the most stringent systems to be found anywhere" and suggested fellow peers read the Interception of Communications Commissioner's annual report, which "includes a detailed account of how the system works and a full statistical breakdown of communications data requests".
The report contains no mention of RIPA use against journalists and last month the Interception Commissioner admitted in a public statement that he had no idea how many times police had used RIPA against journalists and their sources.
"Special considerations" apply to journalists, lawyers and other professions, Baroness Williams said. And she said plans have been made to update the Acquisition and Disclosure of Communications Data Code of Practice, which will "make clear that specific consideration muse be given by the senior authorising officer" to those professions.
“Any application for communications data that are known to be the data of members of these professions or their close contacts will have to state this clearly in the application," she said.
“It will also require that relevant information is available to the authorising office when considering necessity and proportionality. This change will make clear in the statutory code what is already existing best practice.
“We will publish the updated draft code of practice for public consultation as soon as possible, noting the acting Interception of Communications Commissioner’s request to expedite publication of the code.”
Baroness Williams (pictured, right) also suggested it would be “premature to take any legislative action” on the matter before the Interception of Communications Commissioner’s report.
Police forces around the UK have admitted to Press Gazette that they have no idea how many times they have used RIPA against journalists because they do not record it.
After receiving support from Lord Black of Brentwood, Baroness Cohen of Pimlico, Lord Thomas of Gresford and Baroness Smith of Basildon, Lord Strasburger said: “The House seems to have one view and the Minister seems to have another.”
He added: “I do not think that the Minister was listening to what I said. Everyone outside the Home Office and the Foreign Office knows that the safeguards in RIPA have been proved ineffective time and again.
“I rather anticipated that the Government would try to fob us off with some tweak of the code of practice.
“Tweaking the code of practice is not going to offer the certainty that journalists need; it is not going to offer the transparency. All of this is still going to carry on in secret.
“We will not know what on earth is going on, and it will not give the press, the journalists or the media the opportunity to challenge the police’s intention to seek their phone records and others from the phone companies. So it will not take us any further forward at all.”
He described himself as “more than somewhat disappointed with the Government’s response” and said if it does not come back with something “more substantive”: “I am quite sure that I and others, including those in another place, will return to this issue with a vengeance. However, for the sake of good order, I will withdraw my amendment.”
Lord Black of Brentwood (Con) gave his support to the amendment, with some reservations about the drafting.
He said Lord Strasburger should be "congratulated on shining a spotlight on an incredibly serious and troubling issue arising from a piece of legislation that is now looking increasingly arcane". He said: "I fundamentally agree with him that we cannot wait for a permanent solution to this."
On his concerns, he added: "I support the principles behind it – particularly that of prior judicial authorisation – but, as I said, I have some concerns about the detail, because I do not believe that it would actually deliver the extremely high threshold that should be needed for police or other authorities to be able to access journalists’ sources.
"I also do not think that judicial authorisation would necessarily apply in all the cases where RIPA powers can be deployed. It is a very good start, but further thought needs to be given in those areas.”
Baroness Smith suggested it should be referred to as "the Watergate amendment".
"Would that story, with all the implications for democracy and secrecy, ever have been told if the Nixon Administration had been able to identify the Deep Throat source or access the records of the journalists he was speaking to?
“If Nixon had been able to obtain mobile phone records in secret, would we ever have found out what was going on?
"There will be parallels in the UK, although perhaps they will not be so dramatic. That underlines the value and importance of serious investigative journalism.
"I am not talking about sensationalist stories about people that most of us have never heard of, but about the best kind of journalism, which I hugely admire, acting in the public interest, not just on what is of public interest."