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.
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