NUJ praises parliamentary calls for 'snoopers charter' re-think
11 February 2016
The NUJ has welcomed the criticism of the draft Investigatory Powers Bill (IPB) by two parliamentary committees, and backs the call for stronger measures to protect journalists and sources. The bill aims to bring together the numerous state surveillance powers into one piece of legislation.
A parliamentary joint committee has published 86 recommendations including greater judicial oversight, and called for significant amendments and demanded that the IPB codes of practice should be published with the bill.
Michelle Stanistreet, NUJ general secretary, said:
"The NUJ warmly welcomes the recognition by the parliamentary joint committee that the draft Investigatory Powers Bill does not adhere to the standards or existing protections for journalism enshrined in the Police and Criminal Evidence Act (PACE) and the Terrorism Act.
"This is a critical bill that needs substantial changes and the NUJ has repeatedly called for changes to ensure that the state surveillance of communications meta-data, as well as the content, should have the same status and associated protections as journalistic material.
"We would urge the government to listen to both parliamentary committees and the exceptionally united views of the media industry on this issue."
The parliamentary joint committee report acknowledges:
"Journalists have found themselves without these safeguards in a number of instances where the Police have sought to make use of RIPA provisions which do not require judicial approval for the interception, acquisition and disclosure of communications data and covert and human surveillance. As well as side-stepping the need for judicial approval a number of Police forces also failed to comply with relevant requirements (now contained in the RIPA Acquisition and Disclosure of Communications Data Code of Practice 2015) relating to the authorisation of police activity under RIPA."
The joint committee has recommended:
- The protection for journalistic privilege should be fully addressed by way of substantive provisions on the face of the bill.
- The Home Office should reconsider the level of protection which the bill affords to journalistic material and sources. This should be at least equivalent to the protection presently applicable under PACE and the Terrorism Act 2000.
- If clause 61 of the draft IPB remains in its present form then the bill should make it clear that RIPA and clause 61 do not act so as to enable the investigatory authorities to avoid the application of PACE or the Terrorism Act and the ability they afford to the media to know about an application for communications data and make representations as to the proposed acquisition.
- The Home Office should review clause 61 to ensure that it meets the requirements of Article 10 of the European Court of Human Rights.
The report also recognises the NUJ's concerns about the draft IPB:
"Andy Smith, representing the National Union of Journalists (NUJ), referred to the system of prior notification which exists under PACE and which offers the opportunity to explain a situation, so that a judge can make a variation of an application made to him (which may lead to the disclosure of less material than is sought), which, the NUJ considered would very difficult under the proposed framework. He also said that PACE means that journalists are supplied with sufficient information about an application, for instance what other means have been attempted to obtain the information and a face-to-face hearing enables journalists to demonstrate, particularly to potential sources of information, their commitment to source protection. The draft legislation would not afford a right to appeal for a journalist.
"In its written submission the NUJ echoed the views set out in its oral evidence, in particular in respect of prior notification of applications for journalistic material. Further, it noted that there is no prior right of notification for journalists or media organisations where their material is either deliberately, incidentally, collaterally or accidentally sought or obtained, whether by the police or by intelligence agencies and the proposed measures can be bypassed by using urgency procedures.
"The NUJ was also concerned that the police will now start using the draft Bill’s powers routinely to identify sources instead of making PACE/Terrorism Act applications for a journalist’s material as they consider that the draft Bill provides an easier route for the authorities to identify a journalists’ source when it is compared to PACE. It agreed with other witnesses that the production order procedures set out in PACE offer better safeguards and protections than those proposed in the draft Bill. It also argued that the draft Bill’s current proposals would not allow journalists to protect the identity of sources or provide sufficient protections for journalists’ materials and communications as laid down in its Code of Conduct. This could result in informers being unwilling to speak out and also in journalists being perceived as informers possibly impacting on their safety in certain instances. It also noted that the proposed oversight will only apply for the purpose of an application to identify a journalistic source and the judicial authorisation set out in the draft Bill will only cover the police and not the security and intelligence agencies.
"The Union was also concerned by the broad nature of powers on 'equipment interference' and the access which they will provide for authorities. The NUJ concluded that the draft Bill needs better safeguards and not just in the section relating to the interception of communications data."
Earlier this week parliament’s intelligence and security committee also criticised the IPB and called for further amendments. The committee chair, Dominic Grieve, said: "Taken as a whole, the draft bill fails to deliver the clarity that is so badly needed in this area."