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October 12, 2016updated 14 Oct 2016 1:09pm

Government extends Investigatory Powers Bill safeguards for journalists’ sources, but data grabs will remain secret

By Dominic Ponsford

The Government has offered further changes to the Investigatory Powers Bill which it says will protect journalists and their sources from state electronic snooping.

The Bill is currently at its third reading in the House of Lords before going back to the Commons for final approval.

Media groups have expressed concern that the bill allows police and others to secretly access journalists’ call records with the OK of a judicial commissioner

The new changes from the Government do not address this, meaning news organisations will not get the chance to argue in court against grabs of their telecoms records. But the Government has provided some additional protections from journalists in general from state spying powers.

It has also said that protections for journalists’ sources should apply across the bill (which covers all forms of electronic snooping by the Government) not just to applications to view telecoms records (as was the OK).

The changes follow sustained pressure from the NUJ, News Media Association and others and a petition signed by nearly 4,000 launched by Press Gazette.

Speaking for the Government, Lord Howe said yesterday: “In limited circumstances, it may be necessary to use the powers provided in this Bill for the necessary and proportionate investigation of a journalist—for example, where they are suspected of serious illegality or wrongdoing or where there is an immediate threat to life.

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“In such circumstances, the bill and the associated codes of practice already contain significant protections for journalists and their sources, recognising the strong public interest in protecting a free press and freedom of expression in a democratic society, including the willingness of sources to provide information to journalists anonymously.”

However, he said that further amendments to the bill “protect the key principle that individuals who provide information to journalists should have an expectation of privacy”.

He said: “The Government accept that it is important that confidential journalistic material is handled with the sensitivity that it deserves. So where a relevant authority applies for a warrant where the purpose, or one of the purposes, is to authorise or require the obtaining of confidential journalistic material, the amendment would require the application to contain a statement confirming that this is the purpose, or one of the purposes.

“The same requirement would apply in relation to a targeted examination warrant that seeks to authorise the selection for examination of such confidential journalistic material acquired in bulk. This means that the Secretary of State or law enforcement chief and judicial commissioner will have to be fully aware that they are authorising the obtaining of confidential journalistic material when they come to consider a warrant.”

He said: “A free press cannot operate without journalists, and journalists cannot operate without sources. That is why the Government have focused protections on journalists’ sources and the important public interest in protecting the confidentiality of sources of journalistic information.

“Amendments 31 and 76 provide further protection by making clear that when a relevant authority seeks a warrant to identify or confirm a source of journalistic information, the application must contain a statement to that effect. This will mean that the Secretary of State or law enforcement chief and judicial commissioner will be fully aware of the intention to identify or confirm a source when they are considering the necessity and proportionality of the warrant.”

The Government has already amended the bill so that information sought to identify journalists’ sources should only released when there is an overriding public interest.

Viscount Colville (who is himself a current affairs documentary maker) said he was satisfied with the Government’s amendments.

He said the new amendments “will go a very long way to protecting the important relationship between the best journalists and their sources”.

He said: “As a journalist, I know how increasingly difficult it is to nurture a relationship with a whistleblower or an anonymous source who is prepared to reveal confidential information in the public interest. The Bill had been in danger of damaging that bond of trust, as I said in my speech at Second Reading.

“However, Amendment 30 will now place this relationship at the forefront of the judicial commissioners’ minds..

“I have also been concerned that targeted interception clauses would have made journalists covering demonstrations greater targets for those wanting to cause harm…. However, Amendment 75 assuages my fear. ..
“My only reservation is that the Bill does nothing to allow notifying the lawyers of reputable news organisations to alert them that a warrant to carry out surveillance on their journalists has been issued. This would have given them a chance to explain the importance of maintaining the confidentiality of a source when a warrant was asked for.”

Telegraph Media Group executive director Lord Black also welcomed the amendments.

He said: “I welcome the amendments that the noble Earl has brought forward today, which mesh together with Amendments 10 and 11, which form the umbrella for the safeguards being introduced.

“They go a considerable way to meeting the concerns raised by the media. They do not, of course, go as far as some in the media would have liked in an ideal world.

“In committee we looked at prior notification, which the noble Viscount, Lord Colville, has just mentioned. However, we do not live in an ideal world, and it is very welcome that these amendments recognise in the Bill the significance and special importance of journalistic material.

“Given the particular difficulties of prior notification, which I fully understand, and the fact that we are at a late stage in the legislative process, this package is a practical way forward to keep the structure of the Bill intact, while providing important safeguards, although perhaps limited in some respects for confidential sources.”

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