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06 December 2018

MPs Raise Fears For Journalistic Sources

Labour, Lib Dem and SNP MPs have highlighted the threat to journalistic sources after the News Media Association raised concerns about new legislation granting authorities sweeping powers to seize information.

The NMA has called on Ministers, MPs and peers to introduce robust journalistic safeguards to both the Crime (Overseas Production Orders) Bill and the Counter-Terrorism and Border Security Bill which are passing through the Houses of Parliament.

Last week, the Government put forward new journalistic protections for the counter terrorism legislation, creating journalistic defences for the new offences of viewing terrorist material online and travelling to area designated a terrorist threat to UK.

Opposition peers then improved the Bill further by voting in favour of giving journalists an outright exemption from the offence of travelling to a designated area.

But the NMA is still concerned about aspects of that Bill and the lack of robust safeguards in the Crime (Overseas Production Orders) Bill which could result in authorities bypassing established procedures and using new powers to seize journalistic information.

In a briefing to MPs ahead of the House of Commons committee stage debate, the NMA listed its primary concerns with the Bill as: 

  • There is no requirement for a journalist or media organisation to be notified and heard before a judge gives permission for their data to be accessed;
  • There is no requirement for the authorities applying for an order to persuade the judge that accessing the journalistic information is relevant to the investigation, in the public interest and a last resort;
  • Information from confidential sources can be accessed in investigations into all but the most trivial offences, with no duty on the court even to notify the journalist.
  • There is nothing to stop the UK entering into reciprocal arrangements with countries that have few or no safeguards for press freedom and the protection of sources.

The NMA said: "This legislation will allow the Government to enter into agreements with foreign Governments that would allow authorities overseas reciprocal access to data stored in the UK. There is nothing in the Bill that requires that access to be given on terms that mirror the UK’s own safeguards for press freedom.

"This would allow a backdoor for overseas Governments to ride roughshod over PACE. If authorities overseas then share that information with their UK counterparts, then it provides a route by which our own police can bypass these protections as well."

During a debate this week, Labour, Lib Dem and SNP MPs pointed to the disparity between the established Police and Criminal Evidence Act 1984 regime and the proposed new system, highlighting the threat to journalistic sources.

Nick Thomas-Symonds, Labour’s Shadow Security Minister, listed the differences such as the inclusion in PACE of a threshold of what data is “relevant” to an investigation as one of the conditions for a court order to be granted and the requirement for news media to be notified of applications for both “confidential” and “non-confidential” journalistic material.

Mr Thomas-Symonds said: "An application for non-confidential material - for example, where a journalist made a documentary and had some notes - often facilitates a negotiation process about what data is appropriate to provide to the authorities and offers the right of the media organisation concerned to oppose it formally.  The Bill’s failure to make provision for a notification to request non-confidential journalistic material is a concern.

Gavin Newlands, SNP, added: “The system proposed in the Bill will allow for a significantly reduced opportunity for journalists to engage in arguments about what is, and is not, suitable for disclosure, removing the opportunity for a journalist to make submissions on the issues that this gives rise to in the context of their work.

“Where on-notice applications are permitted in cases of “confidential” journalistic material, the Bill is currently silent as to whether or how any submissions will be taken into account by the judge. No further information is outlined on what this process would involve or how much information the journalist would be able to access; nor is it clear that sufficient information would be disclosed to enable them to respond appropriately.”

Sir Edward Davey, Lib Dem Home Affairs Spokesperson, highlighted the absence of a relevant evidence test from the Bill and highlighted the example of the BBC successfully opposing an application for footage of the Mark Duggan shooting in Tottenham, London, 2011.  

He said: “The person who had shot the footage was understandably concerned for their safety, and the BBC successfully opposed the application by pointing to the relevant evidence test in the Police and Criminal Evidence Act. That test is not in the Bill, so there is a clear example that, by not being as subtle in this legislation as we are in our domestic legislation, there is a danger that journalistic freedom, as exercised abroad, will be curtailed.”