New legal protections for media sources may be illusory: Why journalists and lawyers should unite to fight for confidentiality

Two QCs specialising in surveillance and privacy warn that new government protections for journalists' sources may prove to be "illusory" and they urge the industry to keep up the Save Our Sources battle

Press Gazette’s award-winning Save our Sources campaign was influential in securing a change in the government’s approach in the important area of the confidentiality of journalistic sources.

Temporary changes were been made just before the election so that police are now banned from viewing journalists’ call records without the approval of a judge – and new legislation was promised early in the new Parliament to secure the position.

A few weeks into a new government we believe it makes sense for journalists to take stock and ask:

How well are journalists’ confidential sources currently protected and do the recent changes actually make much of a difference?
What further changes does the new government intend to make in this area and what difference will they make?
Is the Save our Sources fight actually over?

Press Gazette launched its fight to stop public authorities spying on journalists’ phone records in September in the wake of revelations about the Met Police’s Operation Alice investigation into “Plebgate”. As is now well known, the police, using powers under RIPA (the Regulation of Investigatory Powers Act 2000), obtained a journalist’s phone records direct from the phone company, without needing to go before a judge to get a court order and without notifying the journalist or his employer of what they were doing. In fact, they were tracking down a suspected leak to the press from within the force.

Kent/Essex Police had used the same powers to obtain similar information in connection with their investigation into barrister Constance Briscoe (Operation Solar – perverting the course of justice in connection with the Chris Huhne and Vicky Pryce trial).

In March, RIPA was amended – but only to add to the existing requirement to publish codes of practice. These codes must be produced by the Home Office to provide further information about the exercise and performance of the powers and duties contained in RIPA. And relevant codes must now include provision designed to protect the public interest in the confidentiality of journalistic sources (section 71(2A)).

There was insufficient time before the election for the government to put forward any more extensive changes to RIPA.

However, in the same month the Acquisition and Disclosure of Communications Data Code of Practice was updated. It now contains a new paragraph dealing with applications to determine the source of journalistic information, requiring the police and certain other public authorities to use procedures under PACE to apply for a court production order to obtain this data(paragraph 3.78):

In the specific case of an application for communications data, which is made in order to identify a journalist’s source, and until such time as there is specific legislation to provide judicial authorisation for such applications, those law enforcement agencies, including the police, National Crime Agency and Her Majesty’s Revenue and Customs, in England and Wales with powers under the Police and Criminal Evidence Act 1984 (PACE) must use the procedures of PACE to apply to a court for a production order to obtain this data…”

Whilst this sounds like very good news, we suggest that the current situation is actually dangerously lacking in clarity. Unfortunately, the new protection in the Code may well prove illusory. This is because:

The requirement in the Code to use PACE production orders to access communications data to reveal journalistic sources is apparently in conflict with an earlier provision in the same Code. The earlier paragraph requires that public authorities should exclusively use the powers in RIPA to obtain communications data unless another law explicitly provides for obtaining communications data (paragraph 1.3). PACE makes no mention of communications data at all

In a similar vein, Interception Commissioner Sir Anthony May observed in his February 2015 report that “Chapter 2 of Part 1 of [RIPA] appears to provide an exclusive scheme whereby communications data can be obtained”. If correct, this would mean that PACE cannot be used for this purpose. Where there is a conflict between the Code (saying you must use PACE) and RIPA (saying you must you RIPA), the latter will prevail

In any event, as Sir Anthony May also pointed out, PACE would not require that notice be served on the journalist of the police application to access the data, nor would the journalist be able to object or attend any subsequent hearing to put his or her case against disclosure. The notice would go instead to the holder of the data (the communications service provider).

The Conservatives promised in their manifesto to “ban the police from accessing journalists’ phone records to identify whistleblowers and other sources without prior judicial approval". We have a good idea how the Government intends to change the law to achieve this.

Draft legislation was published by Home Office Minister Karen Bradley MP before the election. It would be used “when a legislative opportunity arises in the next Parliament”. It would amend RIPA to require authorisation by a Circuit Judge in all cases (except if urgent) where communications data was sought by the police and other law enforcement agencies for the purpose of determining a journalistic source.

Under this law, a judge could only grant approval where there were reasonable grounds for believing that it was necessary for the purpose of preventing or detecting crime or of preventing disorder (or for a number of other stated reasons) and where it would be proportionate to do so.

We have concerns about the new approach:

This would successfully require judicial involvement in the process and that is to be welcomed. But we can see no requirement in the proposed new law to give notice to a journalist or media organisation of an application to access communications data which might reveal a source. There would be no right to be heard

The “reasonable grounds” threshold test may not, in the circumstances, constitute a particularly high hurdle to get over

This marks another change of approach. It requires a change to RIPA and does not rely on PACE in any way. Whilst this will deal with the some of the problems we raise above, it will also be confusing. The Code has just changed to incorporate protection for journalists by using PACE – but would need to change again to keep up with the new law

Whilst we have previously been in favour of working to change RIPA, we now believe that protection for journalistic sources should be part of a completely new piece of legislation. It should not be by further amendment of RIPA, which is well past its sell-by date and should be replaced. The new law should be informed by reviews that were commissioned before the election and have already reported (the Intelligence and Security Committee’s report into privacy and security) or will be reporting soon (the Independent Reviewer of Terrorism Legislation review and the Royal United Services Institute review on the use of internet data for surveillance purposes). It will work better as a result.

Finally, none of the current or envisaged protections act to prevent the spy agencies (MI5, MI6 or GCHQ) from using RIPA powers to obtain information about journalists and their sources for intelligence purposes. You may wish to consider whether or not this is a problem.

For several years the Bar Council (the professional body for barristers) has also been lobbying Parliament for a change in RIPA. As with the relationship between a journalist and his or her source, communications between a lawyer and his or her client is one of the bedrocks of a democratic society. That confidentiality is called “legal professional privilege” (LPP). It is enshrined in statute, for example in PACE, and the courts have recognised its importance for hundreds of years.

There is no recognition of LPP in RIPA; apparently those who drafted the Act were of the view that, since the confidentiality of LPP was absolute, there was no need. Indeed the law was regarded as settled until a case in 2009 in which the House of Lords decided (the judges were not unanimous) that RIPA trumped PACE and that public authorities, including the police, could intercept lawyer-client communications within the existing authorisation regime.

The only way to reverse the 2009 decision is by changing the law, which the Government has been unwilling to do. Just as with the amendment to the Acquisition and Disclosure of Communications Data Code of Practice set out above, the safeguards put in place to provide some protection for LPP are inadequate.

Save Our Sources scored an impressive victory after a concerted and high-profile campaign, but there is more to do. The temporary protections to journalists’ sources brought in just before the election may unfortunately prove illusory. The new law that the government intends to bring in to finish the job probably does not go far enough.

Now is the time, with several reviews due to report shortly on the future legislative landscape of state surveillance, for both journalists and lawyers to make common cause and renew their case for proper recognition of confidentiality. There are many in Parliament who understand the real risks to this fundamental right, in its various forms, on which the functioning of a democratic society depends. They need to be engaged in the debate. A sustained, well argued and united campaign will force the Government to listen and act.

Nicholas Griffin QC and Robert O’Sullivan QC are barristers practising from 5 Paper Buildings in London. They are members of the Bar Council Working Group on Surveillance and Privacy, although this has been written in a personal capacity.