Lord Black spoke during the passage of the Investigatory Powers Bill about the importance of the protection of journalistic sources as he attempted, with others, to introduce an amendment that would guarantee their protection. He told the Lords that:
“The protection of sources is crucial for investigative reporting, whistleblowing and indeed free and unfettered political debate. Without adequate protection, investigative journalism becomes almost impossible, whistleblowers do not come forward to the press and wider media to alert them to issues of public interest, and political debate becomes sterile and bland.”
The full speech is below.
Lord Black of Brentwood (Con): My Lords, I support Amendment 25, moved by the noble Viscount, Lord Colville. I declare my interest as executive director of the Telegraph Media Group and draw attention to my other media interests in the register.
As the noble Viscount has said, the issue of the confidentiality of journalists’ sources has been a leitmotiv during the obsequies of the unloved Regulation of Investigatory Powers Act and throughout the passage of this Bill, during extensive pre-legislative scrutiny, in all its stages in the other place and now here in Committee in your Lordships’ House. But we are now nearing the end of it all and so this is probably our last opportunity to get it right. It therefore deserves the closest and most thorough attention.
I doubt that there are many here who need persuading about the importance, in a free society, of the protection of sources. The arguments were most formidably summed up in the case of Goodwin v United Kingdom in a famous ruling in the European Court of Human Rights some 20 years ago, which stated:
“Without … protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected”.
The protection of sources is crucial for investigative reporting, whistleblowing and indeed free and unfettered political debate. Without adequate protection, investigative journalism becomes almost impossible, whistleblowers do not come forward to the press and wider media to alert them to issues of public interest, and political debate becomes sterile and bland.
Your Lordships should not underestimate the difficulty already faced by journalists in getting confidential sources to speak on matters of often profound public interest. There has been so much attention given in recent years to the way in which sources have been exposed through surveillance and the misuse of anti-terrorist legislation that it is becoming harder and harder to get sources to come forward. Some even fear for their lives because they could easily become targets themselves if it became known that they had co-operated with a reporter. It is not an overstatement to say that, on occasion, the protection of sources can be a matter of life and death. That is why we must take with the utmost seriousness the passage of any legislation in this House which damages free expression and undermines the protection afforded to confidential sources by opening up the possibility of the state being able to shadow the work of journalists, track what they are up to, identify their sources and see what information they have made available.
I know that the Government are acutely aware of the importance of this issue and have listened with great diligence to the concerns of the media and others. I am very grateful to them for the action that they have already taken to strengthen the Bill in this regard, and the amendments in the other place are a very welcome step in the right direction. Unfortunately, I do not believe that they have yet gone far enough. Yes, there are safeguards, and they are very welcome. But they are not strong enough, and above all they will not work properly, and that is what this amendment is all about.
As I have said, this is a matter of real and urgent concern to the whole of the media—publishers, editors, trade unions, the national and regional press, magazines, broadcast and digital—and there has been unprecedented co-operation among interests which are often competing. The reason for this level of unity is, I am afraid, a profound sense of déjà vu. During the passage of RIPA back in 2000, a similar coalition of interests, led by the Newspaper Society, warned that its wide terms and lack of adequate safeguards would inevitably lead to the undermining of confidentiality of sources. The industry warned that the number of organisations which could use RIPA powers should be limited and that the grounds for the use of those powers should be more strictly limited. The industry was repeatedly told that it was crying wolf and that there was no way the Bill could be so abused. On 6 March 2000, Jack Straw, then Home Secretary in the other place, gave a specific guarantee on that subject.
But, of course, we know exactly what happened. We have heard of, and seen, numerous examples where local authorities and the police then subsequently used RIPA powers of surveillance to access phone records to crack down on whistleblowers talking confidentially to the press; and it has often been the local press, who are the guardians of local democracy and accountability, who have been in the firing line. In one case, involving the Derby Telegraph, a local authority used RIPA powers to spy on a reporter who had been talking to council employees. In another, deeply disturbing incident, Thames Valley Police used RIPA powers to place a probe inside the car of a source who had been talking to a reporter from the Milton Keynes Citizen, Sally Murrer, and, on the back of recordings obtained, arrested the journalist and strip-searched her. In 2012, Cleveland police used RIPA powers to access the phone records of three Northern Echo journalists to try to find out the source of its coverage of a Cleveland Police internal report that revealed elements of institutional racism within the police force.
All this—and much more that we may never know about—happened despite protestations from the then Government that this could not possibly happen. The reason for that, as we have seen in countless other cases of legislation involving press freedom and confidentiality of sources, is that the legislation has not been watertight, proper and comprehensive safeguards were not written into the Bill, and it has been too easy for those wanting to access sources to find loopholes through which to crawl. This mistake cannot be allowed to happen again.
It is easy to see where the problem with this Bill arises. As the noble Viscount said, yes, there are safeguards in Clause 73 relating to prior judicial authorisation, and that is welcome, but it is inadequate in a number of respects. For one thing, it governs acquisition of communications data only for the purpose of identifying or confirming the identity of a journalistic source. Crucially, it does not apply to acquisition of data for other purposes. But most importantly, it does not allow for prior notification to the media of an application to use the Bill’s powers, and the opportunity for the media to make submissions on whether this will impact on the confidentiality of a source.
It is all very well having judicial safeguards in place, but they will not work unless the judicial commissioner assessing the application has all the relevant information before applying his or her judgment and making an informed decision. After all, how can a judicial commissioner possibly know what they do not know? That is almost Kafkaesque. Without input from the media—and I recognise that there must be exceptions to this where a journalist or media organisation is under suspicion—they could not possibly, for instance, know how the use of surveillance could actually place the life of a source, or indeed of a journalist, in danger and other such considerations. In those circumstances, the important tests outlined in the Bill cannot be properly applied, and as a result the safeguards simply will not work.
I suspect that the Government will say that the number of cases is likely to be incredibly small—perhaps only a dozen or so a year. One case is bad enough, but more important is the signal it sends to confidential sources that journalists cannot 100% guarantee their security, and that chills free expression and undermines democracy at national and local level.
The amendment moved by the noble Viscount seals up that significant loophole in a way which will allow the safeguards the Government have rightly put forward to work properly. It is absolutely not an attempt to put journalists and media organisations outside the scope of the Bill. It merely recognises—as other legislation ever since the Police and Criminal Evidence Act 1984 has done—the vital importance of this issue in a free society and imports into the Bill tried and tested statutory safeguards, using well-established and effective legal and procedural methods.
The amendment seems a straightforward, simple and common-sense way of dealing with a complex issue in a Bill which we all recognise is vital for the security of our nation. I suspect that the Government are not quite there yet; I hope they are, as they say, still on a journey and that they may yet see the light on the road to Damascus. I know that they will put up a number of arguments against it. They will say that the safeguards are adequate. But the point I have just made is that, while those are fine on paper, they will not work in practice, and there is a danger that we will have RIPA all over again. Unlike “Independence Day”, that is a sequel we could well do without.
I suspect that the Government will also say that, if they introduce additional safeguards for journalism, they will have to do so for others. However, free speech and protection of sources is a genuinely special case, which this House has always set on a pedestal. I argue that there can be no good argument of principle against this amendment, which is not just an esoteric matter but a very real and pressing issue. That is why it has the united backing of the media, why all the parliamentary inquiries into the Bill have said that it must be tackled, and why—as the amendment shows—it has the backing of Members from many different parts of the House.
In conclusion, in 2015 the Conservative manifesto—a great document—itself recognised the importance of this issue. It was perhaps the first time a party had ever made a specific commitment to protect journalists and confidential sources, and I take great pride in that. However, it is now time to make good on that commitment. I hope that the Minister, who has, as always, been the soul of kindness and understanding in listening to concerns put to him, will accept this amendment or bring forward proposals on Report which will deal with this issue and protect free speech. As I said earlier, this is the time to get this right, and time is running out.
Hansard source here.
Lord Black in on the Advisory Board of Albany Associates.