My Lords, I speak to Amendment 42 in my name and those of my noble friend Lady Clark of Kilwinning, who regrets she cannot be here tonight, the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Marlesford. I thank the National Union of Journalists for its advice and declare that I am a former member, and that my daughter has written on the subject of the amendment.
This amendment would ensure that any new powers enshrined in the Bill did not override existing legal protections on press freedom. It seeks to maintain the protections that whistleblowers currently enjoy and to enable journalists to continue to carry out their roles. As it stands, the Bill creates an avenue to access confidential journalistic material and sources without any prior judicial oversight. I hope that this is not the intention of the Government and that the current legislative framework of protections can be maintained. I intend to seek the opinion of the House if the Government cannot reassure me.
The amendment requires that a judicial commissioner give prior approval for authorisations to identify or confirm journalistic sources. The commissioner would need to have regard for both public interests in protecting the source of journalistic information, and the need for there to be another overriding public interest before a public authority seeks to identify or confirm a journalistic source. This reflects the requirement of the Investigatory Powers Act 2016 that, when any application is made to identify confidential journalistic sources, prior authorisation is required by a judicial commissioner. Our amendment respects the contingency that there could be in some cases be an immediate risk to life. In such circumstances, it relaxes the requirement for prior approval by a judicial commissioner, so it meets government objections previously raised.
I understand that the protections enshrined in the Investigatory Powers Act 2016 honoured a commitment in the Conservative Party election manifesto. This commitment followed detailed and sustained representations by the National Union of Journalists and others. They outlined their serious concerns that compromising journalistic confidentiality and the protection of sources was undermining the ability of whistleblowers to make disclosures to journalists in the public interest, and rendering journalists unable to uphold their own ethical commitments to professional privacy.
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Naturally enough, the Government spoke in support of this principle on a number of occasions. I ask the Minister for an explanation of the Government’s rationale for abandoning their support for the principle of the protection of journalistic sources. This principle is, of course, a fundamental right in a free society and there has been considerable case law on it, including at the European Court of Human Rights. Through case law it has been accepted that this kind of protection is required by Article 10 of the European Convention on
Human Rights, on freedom of expression. The right to protect journalistic sources is recognised by international law, the United Nations, the Council of Europe and many other international institutions as key to freedom of expression.
A free press is fundamentally hampered if sources fear exposure by giving information to journalists and, for that reason, hold back. It therefore follows that only in a regime underpinned by that other pillar of democracy, an independent judiciary, should such exceptions to the rule of non-disclosure of sources be permitted, if it is in a wider public interest. That is why the amendment specifies a prior judicial role in granting authorisations for disclosure. I beg to move.