The Home Office appears determined not to allow journalists to defend their sources against phone records grabs.
This was the warning from Liberal Democrat peer Lord Strasburger following a debate this week about the Serious Crime Bill.
Following the Press Gazette Save Our Sources campaign the Government has promised to rush through measures to ensure police forces obtain judicial sign-off before accessing journalists’ phone records.
A report by the Interception Commissioner last month revealed that police forces had obtained the phone records of 82 journalists via the Regulation of Investigatory Powers Act (RIPA) over the last there years to find their sources.
The Lib Dems have joined Press Gazette, the National Union of Journalists, the Society of Editors and the News Media Association in voicing concerns about the lack of prior notification under Government plans.
Lord Strasburger said: “It looks as if the Home Office, both in terms of the Code of Practice change they are proposing to require the police to use the Police and Criminal Evidence Act (PACE) when it comes to identifying journalist sources and in terms of their draft clause to amend RIPA in the next Parliament, are falling short of what is needed to protect whistleblowers.
“Even though there will now be judicial authorisation before a journalist’s sources are likely to be identified by request to telecoms companies, the Home Office seem determined not to make any provision for notifying journalists to enable them to make their case before a judge.
“I share the NUJ’s concerns about this and sought an urgent meeting with the minister to discuss it and I hope the NUJ will come too.”
Speaking in Parliament, Lord Strasburger voiced his concerns about plans to make police forces use the PACE procedure to apply for journalists’ phone records.
He said: “Under PACE—the default position is that the journalist is given notice; that is, that the application is heard by the court inter partes.
“When it comes to RIPA and communications data, the person who holds the material will in general be a telecoms company or an ISP. They are not going to be in a position, of course, to contest any application. They have no significant interest in protecting the confidentiality of any of the information they provide to the police, providing that the police are acting within the law. It is only the journalist who can and should, if circumstances permit, assist the court in identifying the degree of public interest in identifying any of his or her sources.
“By analogy with the provisions in PACE, it seems only right that there should be provision in the new legislation that the Government have promised after the election to provide for judicial authorisation for journalists to be given notice of the application…
“The courts have found it extremely useful to hear representations from the media about non-broadcast footage when the police had applied under PACE for the release of that material. The protection of whistleblowers requires that the only people who can speak up for them in court before they are identified under this legislation are given notice of the application, subject to not prejudicing the investigation. This is a concern for my party and the National Union of Journalists.”
Lord Bates, speaking for the Government, said there no plans to notify journalists in advance of grabs on their phone records: “It has never been the practice in this country that those who are subject to a communications data application are notified.
"There are obvious reasons for that, given that the crime may be under active investigation. We do not intend to depart from that, but we are of course very happy to listen to concerns.”
But Dr Evan Harris, the associate director of Hacked Off and former Lib Dem MP who has been lobbying for a change to RIPA, said: “The Home Office have given no good reason why journalists should not be notified of requests to telecoms companies which are likely to reveal their confidential sources, even when there is no risk of jeopardising a criminal investigation when so doing.
“The history of the law in this area has shown that it is journalists (with the notable exception of Rupert Murdoch’s Management Standards Committee) who are best placed to make the case for the protection of their sources”.
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