Committee finds more safeguards needed for the interception of journalistic material

The House of Commons Joint Committee on Human Rights published its report on the Proposal for a Draft Investigatory Powers Act 2016 (Remedial) Order 2023 on 13 June, which concludes that the government’s proposed Remedial Order to address human rights incompatibilities in the Investigatory Powers Act 2016 (IPA) would fail to provide adequate safeguards for journalistic material.

The UK government’s proposed Remedial Order, which was laid before parliament in March 2023, seeks to remedy an incompatibility with the European Convention on Human Rights (ECHR) regarding how the UK’s bulk interception regime under the IPA approaches confidential journalistic material and the sources of journalistic material. The proposed Remedial Order was instigated by a European Court of Human Rights ruling in the Big Brother Watch case from May 2021, which went against the UK government in identifying several violations of the ECHR arising from the lack of independent authorisation for selecting journalistic material for examination or retaining such material.

The Committee finds that while the proposed measures would largely bring the UK’s bulk interception regime into line with the relevant human rights requirements, the proposed Remedial Order in its current form would fail to provide sufficient safeguards for the retention of journalistic material. As such, it is recommended that the government amends the proposed Remedial Order to bring it into full compliance with human rights standards.

The report states specifically that the Committee is ‘not satisfied that the proposal for the draft Remedial Order would bring the retention regime under the IPA in line with the requirements of Article 10, as set out by the Grand Chamber in the Big Brother Watch case. We recommend that the proposed draft be amended to reflect that the Investigatory Powers Commissioner must order the relevant material to be destroyed unless the public interest test is met. The Commissioner must not be empowered to authorise the retention of the relevant material—even with conditions—where the public interest test has not been met.’