Clause 47

Hidden away amidst changes to the regulation of knitting yarns, sale of liquor confectionary to children and repeal of archaic offences of shaking carpets or keeping pigsties, is a provision that seeks to repeal some of the journalistic protections in the Police and Criminal Evidence Act 1984, which currently ensure that there is proper inter partes judicial scrutiny before police applications to obtain journalistic material are granted - Gill Phillips, Director of Editorial Legal Services at Guardian News and Media

A somewhat worrying article passed beneath my nose recently. It was a Guardian piece under the byline of Owen Bowcott where he vented concerns about the Deregulation Bill then being brought before the British parliament. I put it on the back burner due to other things but given its gravity intended revisiting, even if as a voice in the wilderness. Better that than being voiceless in the wilderness.

Ominously, if there is no ripple effect generated by the alarm Bowcott sought to sound there might ultimately be nothing left to revisit - other than jailed reporters who opt to take a stand - any time journalists make a splash; they alone hearing it in a society rendered tone deaf to the shuffling of legislative papers that mask the death knell for a fundamental bulwark against state encroachment on freedom of the press.

The issue raised in the article is of considerable importance not least to writers and researchers covering the North and those they are meant to keep informed. There, the potential for media strangulation seems even greater than in other places subject to British administration. The political class in the North has been holding out against the extension of a libel reform law from London to Belfast while erstwhile victims of state censorship can now be found enthusiastically calling for even more curtailment of the press. Moreover, increasingly people are released from prison  or bailed on protest charges subject to stringent muzzling conditions that proclaim 'Press Verboten.'

Although only on its second reading – an early stage in the legislative process – the Regulation Bill if successful is tantamount to ensuring what its sponsor, Tory minister of state at the cabinet office Oliver Letwin, boasted: it would lead to newspapers losing 'the guarantee of their day in court.'

According to Guardian News and Media Director of Editorial Legal Services, Gill Phillips:
Clause 47 of the Deregulation Bill removes the statutory procedural safeguards set out in Schedule 1 of PACE, and replaces them with a power to make rules to provide for an as yet undefined process. The removal from parliamentary scrutiny of such a fundamental free speech protection is worrying.

Which stripped of the legalese means:
What’s at stake here is simple: the ability of journalists to protect their sources. This is critical. Without it confidence in journalism is undermined and fewer whistleblowers will come forward in the future ... The plans effectively scrap legal guarantees that journalists’ lawyers can contest “production orders” demanding the surrender of key documents.

Under legislation that has been in place for 3 decades police attempts to seize notebooks, computer disks, photographs etc of journalists ‘must currently be made in open court and representatives of news groups can be present.’

However if the Deregulation Bill succeeds ‘the seizure of journalists' notebooks, photographs and digital files could be conducted in secret hearings’ where the concept of ‘closed material procedures’ will be invoked by the cops and acquiesced in by the judiciary. The upshot of this is, as Gavin Millar QC, who represented BSkyB in a case against police seizure, has argued: the law could then 'allow the police to use closed material proceedings in lots of cases. It's very worrying. The media will not be there to argue their case  ...' Which in turn is likely to lead to a situation where judges ‘will be more easily persuaded to authorise police seizures of journalistic material.’

The Newspaper Society, which represents regional media responsible for titles read weekly by 31 million people has contended that the right to argue against these production orders, are:

vital to the Act’s protection of journalistic material against inappropriate police action… they are integral to parliament’s intention to safeguard freedom of expression, facilitate public interest reporting and maintain media independence of the police.

Sensing the pending suffocating effect it has written to the government protesting the proposed changes.

The deregulation bill's provisions could enable the current statutory safeguards to be removed completely, reduced, weakened or otherwise radically altered at any later time, without prior consultation of the media affected nor detailed parliamentary scrutiny of the effect...

Bad stuff, and the caustic intent revealed by Letwin's bragging should caution against either complacency or sanguinity in the wake of his announcement from the despatch box that 'we are now looking for ways specifically to exempt journalism and all such media items from the clause.' This looks suspiciously like an attempt to take the sting out of the opposition early enough before a head of steam develops. His already explicit intention to ensure the press does not have its day in court could not have been more clearly expressed. And for him to pull back would be to buck the well established trend of the secret state trumping the open society. Arguably such goading left Letwin revealing his hand much too soon, and so the despatch box resort to a bit of discursive backtracking in order to cover his boastful indiscretion. In any event journalists need to take a leaf out of the Mafia film Casino and ask ‘look, why take a chance?

So, one question already asked and answered by Cory Doctorow is 'how the hell did this happen? Sadly, it was absolutely predictable.'

That's for sure. Amnesty International complained in 2012 that:

It's already bad enough that secret procedures have been allowed to creep into the justice system but the government is now trying to extend secret justice to an unprecedented degree ... Despite the serious consequences at stake, closed material procedures make it incredibly difficult for individuals faced with the secret evidence to effectively respond to the government's case.

On which Doctorow elaborates
When Parliament passed a law permitting secret trials where people who were adverse to the government in court proceedings would not be allowed to see the government's evidence, nor have their lawyers review it, those of us who sounded the alarm were accused of hysterics. The Libdem leadership whipped their MPs on the issue, ordering them to vote for it ... When future journalists who report on government wrongdoing have their notebooks seized based on secret evidence, the trigger will be pulled by the government of the day -- but the gun was loaded by the Libdems in 2013 ...  Anyone in the party leadership today who expresses surprise at the expansion of the doctrine of secret courts is either an idiot or a bad liar.

In the industrial world of journalism where leadership has proven itself no less wretched serious opposion to state erosion fared little better.  While fundamental journalistic principles were been swept aside in a deluge called Leveson, the NUJ Ethics Council fought back as only one could when the sum of its collective intellect thought it strategically sagacious to push water uphill with a rake. Leveson proposed making it easier for police to obtain journalists' information and easier for the state to jail journalists while the chair of the Ethics Council deluded himself that 'concerns that stronger regulation would bring more interference are simply not supported by evidence.' With such feeble resolve what is there left to protect journalism other than the autonomous will of committed journalists determined never to hand over their material come what may?

It is far from certain that the view of BSkyB barrister Gavin Miller that the surge against press freedom is ‘lazy policing basically.’ Lazy alone does not explain the matter: it is invidious policing. Miller arguably fails to follow the logic of his own argument to its natural conclusion: ‘The police have realised that there are vast quantities of information that may be of use to investigations.’

The cops are not being lazy but are seeking to be more efficient in their characteristically dominant and bullish manner to the detriment of both journalism and a society that needs to be better informed. The cops are seeking to do their job more efficiently by ensuring journalists cannot do theirs, by moving to seize those 'vast quantities of information' and in the process smothering openness beneath a mushroom cloud of toxic secrecy. It is a dangerous development that disrupts a functionally necessary societal balance, thus incrementally but inexorably edging Britain ever closer to rather than away from a police state.

Alien to a pluralist culture and equipped with the potential to shred any notion of power being effectively held to account by journalism, Clause 47 could as easily have been the title of a George Orwell novel.


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