More safeguards needed for interception of journalistic material – JCHR finds
13 June 2023
The Government’s proposed Remedial Order to address human rights incompatibilities in the Investigatory Powers Act 2016 would fail to provide adequate safeguards for journalistic material, a report by the Joint Committee on Human Rights has found.
While the proposed measures would largely bring the UK’s bulk interception regime into line with human rights requirements, the Joint Committee concludes that they would provide insufficient safeguards for the retention of journalistic material.
The Joint Committee is unable to recommend that Parliament approves the Remedial Order in its current form. It recommends that the Government amends the draft in order to bring it into full compliance with human rights standards.
Freedom of the press is one of the essential foundations of a democratic society and is protected by the European Convention on Human Rights. The protection of journalistic sources is one of the cornerstones of a free press. Interferences with journalistic material may have a chilling effect on sources assisting the press to inform the public about matters of public interest. In May 2021, the European Court of Human Rights found that the UK’s bulk interception legislation was incompatible with the European Convention on Human Rights because it provided insufficient protection for confidential journalistic material and journalistic sources. This Remedial Order was proposed by the Government as an attempt to rectify these insufficiencies in the UK.
The Joint Committee is satisfied that the Remedial Order would address some of the current incompatibility by requiring an independent authority – the Investigatory Powers Commissioner – to pre-authorise searches of bulk interception material which is likely or intended to highlight journalistic material or sources.
However, the Joint Committee is unable to recommend that Parliament approves the Remedial Order. The European Court of Human Rights was clear that journalistic material can only lawfully be retained where an independent authority has concluded that there is an overriding public interest in doing so. In its current form, the Remedial Order would allow the Investigatory Powers Commissioner to permit the retention of journalistic material even when there was no overriding public interest in doing so. The Joint Committee calls on the Government to amend the Remedial Order so that the Investigatory Powers Commissioner must order the destruction of the journalistic material unless convinced that there is an overriding public interest in retaining it.
- Joint Committee on Human Rights
- Legislative scrutiny: Proposal for a Draft Investigatory Powers Act 2016 (Remedial) Order 2023