Serious Crime Bill [HL]

Lord Strasburger Excerpts

Tuesday 28th October 2014 Lords Chamber

Moved by

[Lord Strasburger]

49B: After Clause 69, insert the following new Clause—
“Investigatory powers and crime: legal privilege and journalistic source material
(1) In section 22 of the Regulation of Investigatory Powers Act 2000 (obtaining and disclosing communications data), after subsection (9) insert—
“(10) Subject to subsection (11), nothing in this section shall authorise the obtaining and disclosing of—
(a) items subject to legal privilege, or(b) journalistic source material,for the purpose of preventing or detecting serious crime. (11) The obtaining and disclosing of the items and material referred to in subsection (10) may be authorised by a judge in accordance with the procedure set out in section 22A.
(12) In this section—
“items subject to legal privilege” has the same meaning as in section 10 of the Police and Criminal Evidence Act 1984;
“journalistic source material” means material which may identify a confidential journalistic source.”
(2) After section 22 of that Act insert—
“22A Authorisation by a judge to obtain communications data: legal privilege and journalistic source material
(1) This section applies to an application for a warrant or authorisation under section 22(11).
(2) A person designated for the purpose of this Chapter may apply to a judge for an authorisation.
(3) The application must be made in writing and must set out the grounds on which the application is made.
(4) An application for an authorisation under section 22(11) must be made on notice to any person to whom the authorisation or notice which is the subject of the application relates save that notice of an application is not required if the service of such notice may seriously prejudice the investigation to which the application relates.
(5) Where notice of an application for an authorisation has been served on a person, he shall not conceal, destroy, alter or dispose of the material to which the application relates except with the leave of a judge until—
(a) the application is dismissed or abandoned; or(b) he has complied with an authorisation given on the application.(6) An authorisation shall only be issued or granted if the judge is satisfied that—
(a) it is necessary for the purpose of preventing or detecting serious crime, and(b) the conduct authorised is proportionate to what is sought to be achieved by that conduct, having particular regard to the importance of the protection of legally privileged communications and journalistic sources.(7) In this section “judge” means a Circuit Judge.
(8) In this section and in section 22(10) “serious crime” means the committing or suspected committing of one or more of the offences in England and Wales specified in Part 1 of Schedule 1 to the Serious Crime Act 2007.””

[Lord Strasburger (LD)]

My Lords, Amendment 49B seeks to repair a serious flaw in the Regulation of Investigatory Powers Act 2000, a defect that has emerged only recently. Your Lordships will recall that many people inside and outside this House have been warning for years that RIPA as a whole is not fit for purpose because, among other things, its scope is far too broad; it has large built-in loopholes; its oversight provisions have proved to be hopelessly ineffective; and it has been left behind by several generations of new technology.

Perversely, the Government have been claiming for years that RIPA is the best thing since sliced bread so far as the regulation of intrusive powers is concerned. But in July this year, the Government finally bowed to the inevitable and accepted that all is not well with RIPA. They set up a review of the Act under David Anderson QC, the independent reviewer of terrorism legislation. His report is due before next year’s election, with a view to legislation in the next Parliament, but the particular problem that has just appeared will not wait two years to be dealt with; it needs to be addressed immediately. It concerns the misuse of RIPA by the police in two ways: to uncover journalists’ sources and to access legally privileged information.

The problem with journalists’ sources was brought to light by the Met’s report on Operation Alice, which was its investigation into the “plebgate” affair. It revealed, presumably by accident, that Met officers had secretly used RIPA to get their hands on the phone logs of the Sun’s news desk and its political editor, Tom Newton Dunn. They then proceeded to trawl through a year’s worth of phone calls to find the source of the paper’s stories about “plebgate”. By the way, not a single prosecution has ensued from Operation Alice.

It then emerged that this was not an isolated case. We learnt that Kent Police had used RIPA to obtain the phone records of journalists working for the Mail on Sunday, and that the Suffolk Constabulary had used it against a journalist at the Ipswich Star. It would seem that there are many more cases but the police are very reluctant to reveal details. The Met commissioner steadfastly refuses to let on how many times his force has used RIPA in this way, or when or why, despite many demands that he come clean about this in his regular so-called transparency sessions, the most recent of which was in September.

Why does this matter? There is a well established tradition throughout the world that journalists do not reveal their sources, and many journalists have ended up in jail or worse—much worse—defending this principle. If potential whistleblowers in this country conclude that journalists can no longer guarantee their anonymity because the police can secretly identify them, a lot fewer whistles are going to be blown. They and we know what would happen to them if their cover was blown. They could be arrested; they would be intimidated; they would be ostracised; and they would lose their job and their pension. If insiders who know about wrongdoing stop coming forward because they can no longer be guaranteed anonymity, important information that deserves to be in the public domain will never see the light of day.

I will give the House a few recent examples. In uncovering the phone hacking scandal, the Guardian was helped by sources in the police, who provided important information on the condition that they remained unidentified. They did this in the public interest, knowing that senior ranks were promoting a false version of events to the press, the public and Parliament. If those sources had been identified, they would have faced the loss of their careers and their pensions.

In another example, two anonymous whistleblowers from inside BAE revealed wholesale corrupt payments by the arms company and that BAE had set up secret subsidiaries in the British Virgin Islands, which it was using to channel corrupt payments to Swiss bank accounts. Even more to the point, it was a third anonymous whistleblower, in an official position, who revealed to journalists that Prince Bandar of the Saudi royal family had been paid a total of £1 billion, plus a gift of a personal Airbus, in order to promote arms sales.

If it were not for whistleblowers, patients at NHS trusts such as Mid-Staffs would still be dying unnecessarily and police such as those at Hillsborough would still be covering up their failings, as would corrupt politicians, dishonest businessmen and child-abusing celebrities.

Prying into journalists’ sources is not what RIPA was intended for, as has been confirmed by David Blunkett, the Home Secretary who took it through Parliament. Two weeks ago, when talking about RIPA, he said that no one at the time imagined that,

“legislation secured through parliamentary debate would be used to fetter the right of a free press in a democratic nation to do a responsible job”.

RIPA was supposed to be a weapon against terrorism and other serious crime, not for investigating internal police disciplinary matters and the like.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I am grateful to my noble friend for explaining the purpose of this amendment. I do not believe there is any difference between my noble friend and me, or indeed any of your Lordships who have contributed to this debate, on the key issue at stake here. We all agree that a free and fearless press is fundamental to a democratic society. A key element of journalism is the protection of sources, and I can assure your Lordships that the Government do not wish to do anything which would undermine the operation of the vibrant and independent press that operates in this country.

The amendment which my noble friend has moved seeks to require public authorities who acquire communications data under the Regulation of Investigatory Powers Act 2000 to seek the authorisation of a judge when the material requested is subject to legal privilege or relates to journalistic sources. However, this is unnecessary, given the strict regulation RIPA already contains and the additional safeguards we are already putting in place.

Communications data—the who, when and where but not the content of a communication—would reveal the telephone number a journalist or lawyer calls, but would not reveal any of what was said or written in a communication. Last month, the independent Interception of Communications Commissioner issued a statement in which he said that communications data,

“do not contain any details of what was said or written by the sender or the recipient of the communication. As such, the communications data retained by CSPs”—

communications service providers—

“do not contain any material that may be said to be of professional or legal privilege—the fact that a communication took place does not provide what was discussed or considered or advised”.

None the less, I recognise that this is a sensitive issue. It is personal information and RIPA already applies rigorous controls on its acquisition.

Communications data can only be obtained when their acquisition is necessary for a specified purpose, such as preventing and detecting crime, and then only when it is proportionate to do so. Anyone can complain to the Investigatory Powers Tribunal if they think the powers have been used unlawfully against them. The whole system is presided over, and reported on, by the Interception of Communications Commissioner, a senior judicial figure.

These controls apply to all requests for communications data, and I believe we have one of the most stringent systems to be found anywhere, with both strict internal controls and independent oversight. If any of your Lordships have doubts on this point, I would recommend reading the annual report of the Interception of Communications Commissioner. Sir Anthony May’s report, published in April of this year, includes a detailed account of how the system works and a full statistical breakdown of communications data requests.

However, we recognise the special considerations that apply to journalists, lawyers and a number of other professions which may involve access to sensitive information. We have announced plans to update the Acquisition and Disclosure of Communications Data Code of Practice. These changes will make clear that specific consideration must be given by the senior authorising officer to the level of possible intrusion in cases likely to involve the communications data of those engaged in certain professions who may have obligations of professional secrecy. These professions include journalism, as well as those of lawyers, doctors and Members of Parliament, and will also include those known to be close contacts of members of these professions. Any application for communications data that are known to be the data of members of these professions or their close contacts will have to state this clearly in the application. It will also require that relevant information is available to the authorising office when considering necessity and proportionality. This change will make clear in the statutory code what is already existing best practice.

We will publish the updated draft code of practice for public consultation as soon as possible, noting the acting Interception of Communications Commissioner’s request to expedite publication of the code. It is also worth pointing out that on 6 October the acting Interception of Communications Commissioner, Sir Paul Kennedy, announced that he had,

“launched an inquiry into the use of RIPA powers to determine whether the acquisition of communications data has been undertaken to identify journalistic sources”.

It would certainly be premature to take any legislative action in advance of knowing his findings.

The noble Baroness, Lady Smith of Basildon, asked whether David Anderson’s review of RIPA would cover this area. I am sure that David Anderson will wish to look at all aspects of RIPA interception and communications data, including this issue.

In the light of the protections already available, the very clear commitment to strengthen these through the code of practice and the ongoing inquiry by Sir Paul Kennedy, I invite my noble friend to withdraw his amendment.

[Lord Strasburger]

My Lords, it has been an interesting debate. The House seems to have one view and the Minister seems to have another. I thank noble Lords who have partaken in the debate: my noble friends Lord Black and Lord Thomas, and the noble Baronesses, Lady Cohen and Lady Smith.

I do not think that the Minister was listening to what I said. Everyone outside the Home Office and the Foreign Office knows that the safeguards in RIPA have been proved ineffective time and again. I rather anticipated that the Government would try to fob us off with some tweak of the code of practice. Tweaking the code of practice is not going to offer the certainty that journalists need; it is not going to offer the transparency. All of this is still going to carry on in secret. We will not know what on earth is going on, and it will not give the press, the journalists or the media the opportunity to challenge the police’s intention to seek their phone records and others from the phone companies. So it will not take us any further forward at all.

I have to say that, as you might have detected, I am more than somewhat disappointed with the Government’s response. They have not listened to the debate. I hope they will reflect on the debate and come back with something more substantive. If not, I am quite sure that I and others, including those in another place, will return to this issue with a vengeance. However, for the sake of good order, I will withdraw my amendment.

Amendment 49B withdrawn.