My Lords, the Bill provides that journalistic material which is non-confidential can be obtained through an overseas production order without having to give notice. This type of material may, for example, be the manuscript or copy that the journalist is working on. A judge must be satisfied that the material is relevant to a UK investigation and in the UK public interest before he can approve an order to obtain it. The Bill implicitly recognises that a person named in an order may merely store data on behalf of a person, including those who create or acquire it for journalistic purposes. Journalistic material that is already published is unlikely to form part of an application for an overseas production order. That is because this material can already be freely accessed by law enforcement agencies, and there would be no need to compel production of information that was already in the public domain.
However, where information relates to confidential journalistic material—that is, it is created subject to an obligation that it would be held in confidence and that obligation continues to be held, or it is held subject to a restriction on disclosure or obligation of secrecy contained in legislation—that material will be subject to the notice provisions under Clauses 12 and 13. Therefore, if a journalist stores information—whether in their manuscript, copy or otherwise—that relates to or contains such confidential material, that can be sought but only if an application is made “on notice”. We expect court rules to set out that such an application cannot be determined by the court in the absence of a respondent unless they have waived the opportunity to attend. That already exists in court rules in relation to domestic production orders if, for example, the police wish to obtain access to a journalist’s notebook.
Our objective is to protect legitimate journalism, ensuring that those who may wish to harm us cannot hide behind claims of the data being journalistic to evade investigation or prosecution. Coupled with that, we have been clear that material acquired or created by the journalist to further a criminal purpose is not considered journalistic material. That terminology is borrowed from the Investigatory Powers Act 2016, which sought to ensure that safeguards and protections were targeted at legitimate forms of journalism.
The reason that the Government have carved out material,
“created or acquired with the intention of furthering a criminal purpose”,
is to follow the direction that the Investigatory Powers Act identified, which is that safeguards should not exist for those who intend, through media channels, to do us harm, but then seek to hide behind spurious claims of journalism. One example is the media wing of Daesh, which may use an internet blog designed to disseminate harmful information and claim that it was journalistic material and therefore not caught by the provisions. Conversely, if a journalist acquires a leaked document from a source which alludes to criminal conduct, the journalist acquires it for journalistic purposes, not with the intention of themselves furthering a criminal purpose.
The Government’s intention has always been to protect confidential source material which would fall within the definition in Clause 12(4). I think this is helpful and should provide reassurance to noble Lords, as well as the journalist community, that the Government intend to protect this type of information and take the issue of freedom of the press very seriously. There are sufficient safeguards in the Bill to protect particularly sensitive data. I say again that that the Bill has sought to reflect existing provisions of PACE. That is why I do not feel that the noble Lord’s amendment to Clause 12 adds to the protections already provided for under the current drafting or in court rules.
Clause 12 requires that an application be made on notice if there are reasonable grounds for believing that the material applied for consists of or includes confidential journalistic data. However, as in PACE, the practice and procedure for when courts are permitted to determine applications in the absence of affected persons will be set out in court rules. We expect court rules to include the same provisions as are in place for domestic orders, where there is a presumption that an application will not be determined in the absence of the respondent or another affected person, and therefore notice of any application for an overseas production order should be given to every person who would be affected by a production order.
The presumption is subject to exceptions, which we feel are necessary to ensure that investigations or prosecutions into serious crime are not put at risk if notice is given that could prejudice an investigation, for example, or where the journalists themselves are the subject of the investigation and notice may risk dissipation of relevant data. A person affected by the order therefore has the opportunity to be heard by the court unless the court is satisfied that the applicant cannot identify or contact that person; that it would prejudice the investigation if that person were present; that it would prejudice the investigation to adjourn or postpone the application so as to allow that person to attend; or where that person has waived the opportunity to attend.
By way of example, where an appropriate officer is investigating a serious crime, they may believe that some information in a journalist’s copy would be of substantial value to the investigation. Where there are reasonable grounds for believing that the data specified or described in the application includes confidential journalistic data, the respondent to the application—in this case, the service provider—will be given notice under Clause 12. In addition, we expect court rules to include the same requirements as already exist for applications under PACE, with a presumption that notice of any application for an overseas production order will be given to every person who would be affected by a production order, and they will therefore have an opportunity to be heard by the court unless the exemptions apply. In addition, a production order for confidential journalistic material cannot be determined in the absence of the respondent unless that person has waived their right to attend.
I am not persuaded that Amendment 8 is necessary. If the revised Clause 12 were to form part of the Bill, a court would be precluded from making an overseas production order in relation to confidential journalistic material unless the requirements set out there were satisfied. It would not be necessary to say again, in Clause 5, that those requirements must be fulfilled before a judge can specify electronic data that is confidential journalistic data in an order. For that reason, I ask the noble Lord to withdraw his amendment.