Police Surveillance of Journalists

– in the House of Commons at 12:48 pm on 17th July 2019.

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Photo of David Davis David Davis Conservative, Haltemprice and Howden 12:48 pm, 17th July 2019

(Urgent Question) To ask the Secretary of State for the Home Department to make a statement on the Home Office’s policy on police surveillance of journalists.

Photo of Nick Hurd Nick Hurd The Minister of State, Home Department

It cannot be said often enough that the Government are committed to protecting the free press and freedom of expression in this country. The Government agree—indeed, they forcefully advocates—that confidential journalistic material and journalists’ interaction with their sources must be protected. However, that does not mean that journalists should receive blanket protection from legitimate investigation simply because of their chosen profession. Our security and intelligence and law enforcement agencies will, in very limited circumstances, have a legitimate need to investigate a journalist or that journalist’s source, but there need to be protections in that regard.

We believe that the Investigatory Powers Act 2016 provides strong protections in relation to the use of investigatory powers for the purpose of identifying or confirming a journalistic source and for the obtaining of confidential journalistic information. This ensures that protections are applied where they are required and that those who commit a crime or pose a threat to national security can be investigated regardless of their chosen profession, and it does so in a way that is compatible with all our ECHR obligations.

For example, where a targeted communications data authorisation under part 3 of the Act is made with the purpose of identifying or confirming a source of journalistic information, section 77 of the Act requires that, other than in threat-to-life situations, the authorisation must be approved by a judicial commissioner before it can take effect. In deciding whether to approve such an authorisation the judicial commissioner must have regard to the public interest in protecting the sources of journalistic information and the need for there to be another overriding public interest before a relevant public authority seeks to identify a source.

The codes of practice under the Act provide detailed and extensive guidance to public authorities when applying the powers in the Act, including extensive guidance on when those safeguards should be applied.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

One of the worst things a Government can do to damage democracy is to undermine the freedom of the press. In the past week, there have been numerous press reports of the police using

“the full force of the state” to pin down the source of the recent leak of diplomatic telegrams. According to the reports this includes analysing mobile phone data in journalists’ phones, including location data showing everywhere they had been in the previous weeks. If true, this would be an astonishing intrusion on press freedom, because it puts at risk every confidential source they have, not just the one the police might be looking for.

Since the successful court case brought by Tom Watson and myself against the Government, the Data Retention and Investigatory Powers Act 2014 has been tightened up. Journalists get particular protection under it, and there are only two ways such intrusive surveillance could be legally carried out. One is for the police to have obtained a warrant on national security grounds, in effect. Given the fact that the Government did not even use the DA, or defence advisory notice, procedure to stop publication of the telegram—they did not even use the procedure available to them—it is very unlikely that such a warrant would have been granted or such an agreement have been given by a commissioner. The other way is for one of the state agencies—the secret agencies—to have obtained the data. Given that the leak was embarrassing, but not a threat to national security, this also seems unlikely.

So can the Minister reassure the House that these intrusive surveillance techniques were not used against journalists in this case and that they would never be used unless there was either a serious crime or a real and serious threat to national security?

Photo of Nick Hurd Nick Hurd The Minister of State, Home Department

My right hon. Friend is a long-standing champion of civil liberties and press freedom; in fact, there is probably no greater one in this House, and I am grateful to him for the UQ and the opportunity to place on record again—because, as I said, this cannot be said often enough—the Government’s absolute commitment to protect the freedom of the press. That is a cornerstone of our democratic processes, and he has heard that from the Prime Minister, the two men who want to be the next Prime Minister, the Home Secretary and anyone else at a microphone; that is entirely sincere.

My right hon. Friend is also quite right to point out that the Investigatory Powers Act has been subject to a tightening-up process, in large part stimulated by the promptings of himself and colleagues. The point I was trying to stress in my remarks is that we do believe—although this is being challenged and will continue to be challenged by people who take a different view—that the safeguards and protections in place and what our security, intelligence and law enforcement agencies are required to go through in terms of, for example, seeking a targeted communications data authorisation are extremely stringent.

As my right hon. Friend said, authorisations in this case need to be approved by a judicial commissioner. A Government of any colour need to be subject to scrutiny and challenge on the robustness of these approaches. I am not going to comment on the specific case; I am here simply to set out the process in relation to the protections that my right hon. Friend and others quite rightly seek to be reassured by, and I hope that I have done so.

Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration)

Press freedom is an integral part of democracy. We do not have too much freedom of the press in this country; we have too little. Can it be right that the press is threatened for publishing material that is in the public interest? The illegality in leaking the British ambassador to Washington’s thoughts may be tested in the courts, so I shall be cautious about any remarks on that, but surely it cannot be illegal to publish those remarks simply because they are the cause of embarrassment to the Government. Surely, it cannot be right that scanning technology is being used against journalists to investigate the leak. Is it open to the Home Secretary to issue guidance to police forces on this matter, to ensure that there is not now or in the future this trawling of journalists’ phones, laptops and other devices?

In another case earlier this month, the Belfast High Court declared that the warrants authorising the search and arrest of two documentary filmmakers were unlawful and that everything seized from the filmmakers must be returned. The filmmakers had previously released a documentary about a mass killing in Northern Ireland for which no one has ever been charged, “No Stone Unturned.” The Belfast High Court was surely right, but this case highlights the need for greater judicial oversight of the police and the security services, especially in their dealings with the press.

Photo of Nick Hurd Nick Hurd The Minister of State, Home Department

I am sure the hon. Gentleman will want to make it clear on behalf of the Opposition that they entirely support the police having the ability to get on with their work and identify the leaker. The police certainly have our full support on that, because those leaks should not have happened and they have been damaging. I am sure everyone wants to see the leaker identified.

The hon. Gentleman will also I am sure, having done his homework, be aware of what the Official Secrets Act 1989 says, in particular section 5, and that is how the law stands at the moment, but what is critical—I am delighted to come to the House again to make this clear—is that in going about their business on our behalf, the security, intelligence and law enforcement agencies need to jump through some very significant hoops and go through very robust processes, including, as I have stated, when they seek a targeted communications data authorisation approval by a judicial commissioner before it can take effect. We are satisfied—but this must always be open to challenge—that those processes, safeguards and checks and balances are robust.

We operate in a vibrant democracy, and we in this place always in my experience have vigorous debates about these balances and the need for safeguards. We have debates about pushing back the powers of our law enforcement agencies—whereas in other countries those debates do not take place—and that is a symbol and sign of the health of our democracy. I am sure that at the end of this UQ, we and the watching public will be in no doubt about this House’s commitment to the freedom of the press.

Photo of John Whittingdale John Whittingdale Conservative, Maldon

I commend the Government on the organisation of last week’s excellent global media freedom conference, but does the Minister agree that the UK needs to do a lot more to improve on our present ranking of 33 in the world press freedom index? Does he also recognise that the concerns expressed by my right hon. Friend Mr Davis make that harder to achieve and that these concerns risk being exploited by other countries who do not protect media freedom and are only too keen to lock up journalists?

Photo of Nick Hurd Nick Hurd The Minister of State, Home Department

I accept all that, coming from the authority of a highly distinguished former Secretary of State. I am entirely sincere, as are my colleagues, in taking this opportunity to reassert the importance of the freedom of the press and the protection of media freedoms, but we cannot in that process allow any sense that there is a blanket protection for legitimate investigation simply because of someone’s chosen profession. The processes need to be robust and open to criticism and debate, but the primacy of the free press and freedom of expression in this country is absolutely central to our democratic processes.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

I congratulate Mr Davis on securing this question. It is indeed ironic that we are discussing these matters the week after the British Government hosted the first global conference on media freedom. The Foreign Secretary has spoken about convening a panel of experts to advise countries on how to strengthen the legal protection of journalists. On the evidence of some of the statements made over the past few days, the convener of that panel might be best advised to start close to home.

The Scottish National party has made it clear that we deplore diplomatic leaks as unacceptable and that they should be investigated. However, in times of crisis we need to remember that we must uphold human rights, and particularly press freedom. I wonder whether there were any official secrets in the ambassador’s leaked comments. After all, it is hardly a secret that Donald Trump is inept, and the police really ought to understand that the Official Secrets Act 1989 is not there to protect the Government from embarrassment. I am sure that they do understand that, but if they do not, I am sure that they will be reminded by those who give them legal advice. Will the Minister tell the House who escalated these investigations to the police, and why? Was it Downing Street, as some newspapers have reported? If an offence has been committed and the police are to be involved, would they not be better employed catching the leaker rather than shooting the messenger?

Photo of Nick Hurd Nick Hurd The Minister of State, Home Department

The hon. and learned Lady is right to echo what my right hon. Friend the Member for Haltemprice and Howden said earlier, and it is something to be proud of that a British Foreign Secretary has chosen the championing of media freedom as one of his core campaigns and chosen to take that message around the world. The Official Secrets Act is not there to protect the Government from embarrassment; it is there for all the reasons that we know. My desire is for the police to be able to get on with their job and identify the leaker. That is their primary objective.

Photo of Richard Drax Richard Drax Conservative, South Dorset

May I add a little more to the point that has just been made? Why were the police brought in? As a former journalist of some 17 years, I know that journalists rely on sources to give the news to the public. Let us face it, there have been leaks before and there will be leaks in the future, and this leak was embarrassing but it was nothing to do with the defence of our country. If the police are to be called in every time there is a leak, every journalist in the country is going to fear that their newsroom will be full of officers in blue every time a story with the potential to hurt someone in power is published.

Photo of Nick Hurd Nick Hurd The Minister of State, Home Department

I understand the point my hon. Friend is making, and I understand that the comments from the Met have generated ripples, but this was a serious leak and it is entirely appropriate that the police should look at it seriously. I hope he will support me in wishing them every success in doing their job, which is to find the leaker. I do not interpret what has been said as anything other than a clarification of the law as it stands, and I hope that he will join me in my determination to identify the source of this damaging leak.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith

There is a big difference between the targeted collection of evidence in the pursuit of serious criminal offences and a fishing expedition in which Government embarrassment is a factor. This seems rather too near to the second of those. Never mind journalists—the general public are concerned about the way in which the state and other agencies are now able to collect data on them. Should we not be on the public’s side? Should not the Government be publishing information, in readable and accessible form, on people’s rights to privacy and on the right of the state to intrude on them?

Photo of Nick Hurd Nick Hurd The Minister of State, Home Department

I am all for more transparency, and I hope we are all on the side of upholding the law. What I have been trying to set out, in what I hope is a reassuring way, is that there are robust safeguards in place for when our law enforcement agencies seek specific powers. The guidance and the codes around that are explicit and extensive in regard to protecting journalists.

Photo of Bob Blackman Bob Blackman Conservative, Harrow East

I thank my right hon. Friend for the answers he has given thus far. The balance between the duties of the police and the freedom of the press is clearly vital, but can he reassure the House that the police are not interpreting their role in a widespread manner and therefore snooping on journalists who have nothing whatsoever to do with the investigation of this particular leak?

Photo of Nick Hurd Nick Hurd The Minister of State, Home Department

I thank my hon. Friend and parliamentary neighbour for his question. I have absolutely no evidence to suggest that what he fears is the case. I wholly endorse the very focused police effort in this specific investigation to identify the leaker.

Photo of Peter Kyle Peter Kyle Labour, Hove

I was on the Investigatory Powers Bill Committee, and one of the most contentious areas of debate in that period was public interest. When the Judicial Commissioner makes a judgment based on public interest, what do the Minister and his Department do to ensure that that interpretation is the correct one and that it is appropriate to the time and accountable to this House?

Photo of Nick Hurd Nick Hurd The Minister of State, Home Department

There is a great deal of guidance around this subject, but the hon. Gentleman is right and I thank him for his work on that scrutiny. I am happy to repeat the point that, in deciding whether to approve an authorisation—for example, a targeted communications data authorisation—the Judicial Commissioner must have regard to

“the public interest in protecting a source of journalistic information, and…the need for there to be another overriding public interest before a relevant public authority seeks to identify or confirm a source of journalistic information.”

That is explicit.

Photo of Chi Onwurah Chi Onwurah Shadow Minister (Department for Business, Energy and Industrial Strategy) (Industrial Strategy)

The Minister must surely agree that part of the problem is the application of technology, particularly automation, to police powers without appropriate protections or even public debate. We might understand the need for a particular warrant for specific documents in the case of criminal activity, but the automated blanket trawling of all emails, locations and conversations for all journalists is clearly inappropriate. It is not only journalists who could be targeted; the rest of us also deserve protection from digital surveillance, video and voice recognition. Does the Minister agree that we need a charter of digital rights for all of us, as Labour is advocating?

Photo of Nick Hurd Nick Hurd The Minister of State, Home Department

If the hon. Lady is talking specifically about the examination of data under a bulk acquisition warrant, I would again point to the whole set of codes, guidance, processes and safeguards that relate to that. If she is talking about the broader issue around the application of technology and artificial intelligence to the working of our law enforcement agencies, she is entirely right to suggest that, as we stand on the brink of a revolution in what technology can enable our law enforcement agencies to do, we as citizens need to feel comfortable and confident with that, and that we need to have the appropriate legal and regulatory environment for it, which is what we believe we have.

Several hon. Members:

rose—

Photo of Gavin Newlands Gavin Newlands Shadow SNP Spokesperson (Sport), Shadow SNP Spokesperson (Northern Ireland), Shadow SNP Spokesperson (Wales)

I certainly was, Mr Speaker, but I was going to bob up again in a second. I am grateful for your observation.

I was also on the Investigatory Powers Bill Committee. During the progress of that Bill, 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;
c. 193.]

Given the events of recent days, can the Minister tell me what has changed in Government policy?

Photo of Nick Hurd Nick Hurd The Minister of State, Home Department

I hope the hon. Gentleman’s knees are all right.

I honestly do not think that there has been a change in policy, and I have set out the processes around the Investigatory Powers Act, which he and other colleagues helped to shape and toughen. He will know better than me that those processes are now robust, and the police are complying with them.

Photo of Christine Jardine Christine Jardine Liberal Democrat Spokesperson (Work and Pensions)

I thank Mr Davis for bringing this vital matter to the House’s attention. The Minister has said on more than one occasion that, while he values press freedom, an individual should not have protection from legitimate inquiry simply because of the profession they chose. However, the very purpose of the journalistic profession is to scrutinise Government and to ensure that human rights are adhered to and that Government procedures are followed. Does the Minister therefore accept that we need something from the Government to ensure that, given advances in scanning and tracking technology, journalists are protected when providing that valuable public service?

Photo of Nick Hurd Nick Hurd The Minister of State, Home Department

Journalists provide an incredibly important service in our democracy, and I have been entirely sincere in everything that I have said. I am sure that the hon. Lady is not suggesting that someone should be above the law or receive blanket protection from legitimate investigation in limited circumstances simply because they are a journalist. The right processes, safeguards and checks and balances need to be in place. Frankly, we need the right challenge on law enforcement agencies when they seek authorisations to pursue investigations. I have set out what is in the Investigatory Powers Act, which I believe is a robust process.

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Spokesperson (Exiting the European Union)

The problem is that the police and security services were given these powers to allow them to prevent and detect serious crime, but there is absolutely no suggestion that those now being put under random widespread surveillance committed a crime. If a crime has been committed, it was committed either by a civil servant or a Member of Parliament. We obviously cannot know for certain whether the reports referred to by Mr Davis have any accuracy to them, but if they do, they point to the police using their powers not to prevent serious crime, but to intimidate and harass journalists, whose job it is to hold the police and us to account. Will the Minister undertake to carry out a review, reporting in Privy Council terms if necessary, into the Met Police’s actions, so that this Parliament can be the final arbiter of whether the powers that we agreed to give to the police are being abused?

Photo of Nick Hurd Nick Hurd The Minister of State, Home Department

It is wrong for the House, and certainly for Ministers, to speculate on the outcome of this particular investigation. We need to let the police get on with their work, but they and others will have heard clearly the House’s messages of concern. I return to the fact that this Parliament has set up a robust process of checks and balances on the police.