Covert powers must not override legal protections on UK press freedom
9 October 2020
The National Union of Journalists (NUJ) in the UK and Ireland is calling on UK parliamentarians to ensure that any new powers enshrined in the Covert Human Intelligence Sources (Criminal Conduct) Bill must not override existing legal protections on press freedom.
The union is concerned about the potential ramifications of the new bill in regard to the protection of journalistic sources in general, the ability to create new routes to access journalistic material and the existing judicial oversight measures applied to accessing the communications data of journalists set out in the Investigatory Powers Act.
Michelle Stanistreet, NUJ general secretary, said:
"Our main concern with the new draft legislation currently being rushed through parliament relates to covert criminal conduct, if it is sanctioned in law then it may act as a means to circumvent the existing legal protections for journalists and journalism. This is a red flag for our democracy so we are calling on every politician who supports press freedom to intervene in the next parliamentary debate to ensure that any new law that is introduced cannot override existing media freedoms."
The NUJ fears that the lack of clarity on these issues means there is the potential for the new Covert Human Intelligence Sources (Criminal Conduct) Bill to create a backdoor to access confidential journalistic material and sources. Any review of a decision after the event would not be sufficient - it is not possible to retrospectively protect journalistic sources and material once the authorities have covertly accessed them.
The right to protect journalistic sources is recognised by international law. It has been recognised by the United Nations, the Council of Europe, the Organization of American States and the Organization for Security and Cooperation in Europe. The European Court of Human Rights said in several of its decisions that it's a key element of freedom of expression.
The government has itself has also acknowledged the importance of the issue. Regarding the confidentiality of journalistic sources, the then solicitor general, Robert Buckland, said: "We are absolutely committed to the preservation and protection of a free press and freedom of expression in our democratic society. That includes the ability of sources to provide anonymous information to journalists, which is absolutely vital if we are to have throughput of important information that needs to be in the public domain." Official Report, Investigatory Powers Public Bill Committee, 12 April 2016.
The Investigatory Powers Act requires prior judicial authorisation by a judicial commissioner when any application is made to identify confidential journalistic sources. This requirement needs to maintained not overridden by the Covert Human Intelligence Sources (Criminal Conduct) Bill.
In any criminal investigation seeking to access journalistic material (which could include written notes, audio recordings, still photos or raw video footage) a production order is currently required under the Police and Criminal Evidence Act (PACE 1984). The journalist or media organisation receives notification of this application and can contest the application. This requirement needs to maintained not overridden by the Covert Human Intelligence Sources (Criminal Conduct) Bill.