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February 11, 2015

Former GCHQ directors on drafting RIPA: ‘We didn’t talk about journalists’

By PA Media Lawyer

(This is an edited version of an article which was first published on the website of the Bureau of Investigative Journalism, and is reproduced here with the Bureau's permission)

GCHQ's former legal director has admitted that journalists' communications with their sources were barely considered when the Regulation of Investigatory Powers Act was drafted. (Picture: Shutterstock)

Michael Drury, who was GCHQ's director of legal affairs between 1996 and 2010, was partly responsible for drafting RIPA and was heavily involved in lobbying government over the law.

He told an Oxford University seminar on interception and the law in the digital age on Monday night that at the time attention was focused on privacy rights under Article 8 of the European Convention on Human Rights, rather than the right to freedom of expression under Article 10, which ensures journalists are free to do their job.

"The purpose of the Act was to ensure that interception met Article 8 privacy standards," he said. "Very little attention was given to Article 10."

His recollection was corroborated by a member of the audience at the seminar, Sir David Omand, a former GCHQ director who was permanent secretary at the Home Office between 1997 and 2000.

"I can confirm we didn't talk about journalists," Omand said.

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The Bureau of Investigative Journalism is currently challenging the British government in the European Court of Human Rights in connection with its surveillance activities.

The case claims that journalists' communications are inadequately safeguarded under RIPA as their sources may be identified from the data collected by the intelligence agencies. The Bureau's case is particularly concerned with the routine data collection and analysis of this material by GCHQ.

Last week a report by the Interception of Communications Commissioner found that the police had failed to give "due consideration" to Article 10 rights when applying for warrants to intercept journalists' communications.

The Commissioner recommended that judges should approve interception requests in cases where officers are seeking to discover journalists' sources.

Drury said of the Commissioner's findings: "This is a learning curve for both the police and intelligence agencies."

Drury, a former tax lawyer who now works at solicitors firm Burton Copeland, also said it would be "foolhardy" to pass new legislation on interception before a decision had been reached on a series of cases in the European court that are challenging RIPA. These cases include those brought by NGOs Big Brother Watch and Privacy International as well as by the Bureau.

He added that he did not expect any new legislation that was passed to be significantly different from RIPA.

"If there is a desire to have a signals intelligence capability then I don't think [the law] will look much different, as there's only so much you can do to legislate for such a system," he explained.

During the seminar, in which he emphasised that his opinions were personal, Drury also said:

  • ¬†That the intelligence agencies' surveillance activities would have been "perfectly apparent" to anyone reading RIPA prior to the 2013 leaks by National Security Agency whistleblower Edward Snowden. "The suggestion that the scales were lifted from our eyes is wrong," he said.
  • That the government's "neither confirm nor deny" policy on certain aspects of its surveillance programme would become more difficult to maintain as more information became public.
  • That in his experience Secretaries of State were better decision-makers than judges. "The suggestion that [Secretaries of State] come with a more relaxed attitude is entirely wrong," he said. He added: "I believe philosophically that national security is a matter for the government, subject to judicial oversight by the IPT."
  • That use of encryption could not be controlled and that it would be "asinine" to legislate for it.

The original article is on the BIJ website.

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