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.
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Until recently, attempts by the police to access a journalist’s records have been dealt with under the Police and Criminal Evidence Act 1984. Under PACE, the police are obliged to apply to a judge for permission to access the phone records of a journalist. The judge needs to be convinced that a serious offence is involved and that the disclosure is in the public interest. The journalist is notified and may be represented at the hearing to contest the application. The PACE safeguards have worked well.
On the other hand, RIPA has no external real-time safeguards at all. Police applications for phone data are subject to no judicial oversight and are simply self-authorised by a so-called “designated person” who is usually a superintendent in the same force. There is no special treatment for journalists’ records; the journalist is not informed that the demand for the records is being made to his phone company, and the company is legally obliged to hand everything over without the journalist’s knowledge.
Kevin Hurley, who is the police and crime commissioner for Surrey and was once a chief superintendent in the Met, referring to the “plebgate” case, said that RIPA was used there,
“to compromise a journalist’s sources by the back door and without external scrutiny for no reason other than to defend the reputation of the Metropolitan Police Service. Seizing journalistic materials is a serious decision indeed, and one with consequences for our country as a whole. Such a move must be subject to debate and challenge in court if it is to have legitimacy”.
Responsible investigative journalism is a bulwark of our democracy. Unless we take action, this misuse of RIPA to evade the safeguards in PACE—or this “weasel wangle”, as Peter Preston has called it—will have a chilling effect on free speech. It will interfere with our freedom of information and with the public’s right to be informed, as defined Article10 of the European Convention on Human Rights.
The purpose of this amendment is to graft on to RIPA similar protections to those already applying under PACE: judicial oversight of applications involving journalists’ records and legally privileged information, and to require an open hearing with both sides represented. The judge will need to be satisfied that disclosure is necessary for the detecting or preventing of serious crime, and that the request for data is proportionate to what is being sought to be achieved with it. The judge will have to have particular regard to the protection of legally privileged information and journalistic sources.
The Home Secretary has spoken of amending the code of practice relating to RIPA as an alternative solution to this problem, but that would not offer the cast-iron protection that journalists and their sources need. Only primary legislation will achieve that.
The omission of these safeguards from RIPA is just one of the many flaws in this legislation. It can be argued, with justification, that the Regulation of Investigatory Powers Act is less about regulating the investigatory powers of government and more about conferring those powers without much regulation at all. Noble Lords should not forget that we only became aware of the particular abuse we are discussing today—the misuse of RIPA to access journalists’ sources—because it was inadvertently mentioned in the Met’s report on Operation Alice. If that had not happened, this practice would not have come to light. The terrible truth is that this House, this Parliament and this country have no idea about what RIPA is being used for by the police and by the many other public bodies that are authorised to use or abuse it.
RIPA gives highly intrusive powers to the police, the intelligence services and hundreds of other public authorities. Its drafting was so broad that there are no real constraints on how those powers can be used, or misused; and it all happens in secret and without any effective oversight by Parliament. It is no wonder, then, that RIPA has become a charter for snooping where there should be no snooping; and no wonder that it started to suffer from mission creep from day one, being used in ways that were not intended by its authors.
Edward Snowden’s revelations demonstrate that RIPA has been used to legitimise the interception and storage of the private communications of millions of British citizens on a truly massive scale by exploiting antiquated statutory definitions and changes to communications technology. No matter what view is taken on the ethics of Snowden’s actions, nobody has disputed his accuracy. With that in mind, I ask the House to reflect on what he had to say about how innocent British citizens’ private data are being hoovered up without any limits:
“GCHQ has probably the most invasive network intercept programme in the world. It's called Tempora and it's the world's first Full Take, they call it, and that means content in addition to metadata, on everything”.
RIPA has allowed this to happen without Parliament or the people knowing a thing about it or being asked to consent to it. We were not asked; it just happened. It is to be hoped that David Anderson’s review will come up with a blueprint for an up-to-date, clearly defined and proportionate regime for authorising these highly intrusive techniques where they are needed and preventing their use where they are not justified. The next Parliament will then have to legislate. In the mean time, we have an urgent job to do. We need to stop the police from evading PACE’s protections for journalists’ sources and for legally privileged information. This amendment adds the missing provisions to RIPA to achieve that.
Before I sit down, I should mention that although this amendment was tabled late, I did all I could to circulate it and I am grateful for the widespread support it has attracted from the media, NGOs and several noble Lords who are unable to be in the House today.
The campaigning group Justice has been in touch to remind me that it made clear its support for more protection under RIPA for legal professional privilege in its earlier report, Freedom from Suspicion.
I will close with the words of Chris Frost, chair of the National Union of Journalists’ ethics council:
“In my experience virtually every serious investigation is launched on the back of a … whistleblower who needs to remain anonymous for their protection”.
Since this is the first opportunity that the House has had to debate this matter I do not intend to divide the House at this stage. However, I will be disappointed if the Government reject this amendment outright, especially when all that is offered in its place is a review and no action before the general election or a review of the code of practice. I beg to move.