Committee (3rd Day) (Continued)
Clause 30: Meaning of “foreign power”
Amendments 67 to 71 not moved.
Clause 30 agreed.
Clause 31: Foreign power threat activity and involvement in that activity
72: Clause 31, page 23, line 3, leave out paragraph (c)
Member’s explanatory statement
This amendment is recommended by the JCHR and would narrow the definition of foreign power threat activity to remove giving support and assistance (including support and assistance unrelated to espionage activity) to a person known or believed to be involved in offences under the Bill (but would retain conduct which facilitates or is intended to facilitate such offending).
My Lords, in the absence of my noble friend Lady Ludford, I am moving Amendment 72. It is a short amendment and I shall speak briefly. Clause 31 deals with foreign power threat activity, which is relevant to a constable’s powers of arrest without warrant and detention powers under Clause 35. Indeed, such activity acts as a threshold for the exercise of those powers. Foreign power threat activity also acts as a threshold for the powers of search, disclosure orders, customer information orders and account monitoring orders by virtue of Clauses 21(b), 22 to 24 and Schedules 2 to 5 incorporated in the Bill by those clauses.
Foreign power threat activity is defined in paragraphs (a), (b) and (c) of Clause 31(1). I am afraid I have to read them:
“In this Part references to foreign power threat activity and to involvement in foreign power threat activity are to one or more of the following … (a) the commission, preparation or instigation of acts or threats within subsection (3)”—
that is, the major offences under the first part of this Bill—
“(b) conduct which facilitates (or is intended to facilitate) conduct falling within paragraph (a)”,
which I have just read. Finally, our amendment is directed to paragraph (c), which we say should be removed from Bill and which refers to
“conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraph (a).”
The reasons paragraph (c) should be removed are twofold. First, it makes no sense. Secondly, even if it did, the conduct described is far too vague and remote from the acts concerned in the offences described to make any sense at all or to make it worth retaining.
It makes no sense because of the double use of the word “individuals”. The individuals are the receivers of the support or assistance, and they are
“known or believed by the individual concerned to be involved in conduct”.
Well, the individual concerned who is the receiver of the assistance knows perfectly well what conduct he or she is involved in. That nonsense aside—a drafting misstep at best—even if the second use of the word “individual” were to mean the giver of the support or assistance, as it might have done, rather than the receiver of the support or assistance, which makes it a nonsense, we say it is still too remote and vague.
It is too remote because the conduct is so far removed from the support or assistance as to make it effectively impossible to prosecute. It is too vague because there is absolutely no indication of what support or assistance to the relevant individuals is the mischief at which this is aimed. Is it simply supplying a meal or housing, or support or assistance in connection with the conduct? There is nothing effectively to connect the support or assistance to the conduct at which this provision is aimed. This is an important provision because it is the threshold to the exercise of very wide-ranging powers in the clause and the rest of the schedules, so we say it would be far better without paragraph (c). I beg to move.
My Lords, this is another JCHR-recommended amendment, ably spoken to by the noble Lord, Lord Marks. Its effect is to narrow the definition of foreign power threat activity by removing giving support and assistance to a person involved in offences under the Bill. The reason for the amendment is that the support and assistance become illegal if unrelated to espionage activity. As the noble Lord explained, its effect does not alter the lines which include facilitating such offending under subsections (1)(a) and (1)(b) of the relevant clause. His objection to paragraph (c) was that it does not make sense and is too vague. I take on board the legal points and his examination of the English in that paragraph, but the real point of this is to provoke a debate and discussion, to narrow the definition and encourage the Minister to explain more fully what is meant by the definitions set down in the Bill.
My Lords, Amendment 72 seeks to narrow the definition of foreign power threat activity by removing the conduct of those who give support or assistance to individuals, as has been noted.
The definition of foreign power threat activity is a vital part of the Bill, ensuring that the police have the powers they need in support of investigations into state threats offences. It is important that foreign power threat activity has sufficient breadth to allow our law enforcement and intelligence agencies to act where a threat is posed to the safety of the United Kingdom.
There will inevitably be overlap between facilitating on the one hand and assisting or supporting individuals on the other to carry out certain harmful activity under the Bill. However, it is important to retain both elements as they serve distinct purposes. We do not wish to create a gap in the legislation that prevents us being able to act against persons who assist individuals involved in harmful activity, and therefore we cannot accept this amendment.
Both noble Lords implied that it is casting the net too broadly to say that it is not necessary to identify a specific offence or act. However, given the harm that can arise from state threats activity, it is right that the Government can act to disrupt individuals during the early stages of their conduct. Therefore, it will not always be possible to determine the end goal of their conduct. Indeed, in some cases an individual may not have even decided the precise outcome they seek to bring about but, none the less, they have an intention to engage in state threats activity. We therefore want to ensure that the provisions are robust enough to catch criminals in these cases. Waiting until we have a full picture of the act they wish to commit could mean that we have to wait until the act itself is committed.
Additionally, I reassure the House that the reference to
“conduct which gives support or assistance”
under Clause 31(1)(c) relates specifically to conduct falling under Clause 31(1)(a), as is made explicit through the reference to paragraph (a). The Government’s view is that it is implicit that the conduct in question must be support in relation to acts or threats under Clause 31(1)(a), rather than support in relation to any unrelated activity. Thus, the provision does not risk bringing activity wholly unrelated to state threats activity into scope.
Can the Minister explain that? That is the only thing I can see that is covered by paragraph (c) which is not covered by paragraph (b)—the provision of support or assistance in matters which are nothing to do with the likelihood of the individual being involved in conduct falling within paragraph (a). The Minister has stated that paragraph (c) does not have the effect of proscribing conduct which has nothing to do with the provisions in paragraphs (a) and (b), but I do not know on what he bases that confidence.
I will withdraw it, but only on the basis that the Minister will consider this a little more carefully. As I have said, at the moment the clause seems to me unsatisfactory, and paragraph (c) ought to go. That would not damage the overall meaning of the clause at all, and I hope that the Minister will reconsider that before Report. With that, I beg leave to withdraw the amendment.
Amendment 72 withdrawn.
Clause 31 agreed.
Clauses 32 and 33 agreed.
Clause 34: Offences committed outside the United Kingdom
73: Clause 34, page 25, line 20, leave out from “(1)” to end of line 21 and insert “is subject to sections 3(6) and 15(6) (commission of offences under sections 3 and 15 by conduct outside the United Kingdom).”
Member's explanatory statement
This amendment provides that Clause 34(1) is subject to specific provisions in Clauses 3 and 15 about when conduct taking place outside the UK can constitute an offence under those Clauses.
Amendment 73 agreed.
Clause 34, as amended, agreed.
Clause 35 agreed.
Clause 36: Power to exclude the public from proceedings
74: Clause 36, page 26, line 5, leave out “in the interests of national security” and insert “for the administration of justice, having regard to the risk to national security”
Member's explanatory statement
This amendment is based on a recommendation from the JCHR. It ensures this Clause better complies with the right to a fair trial and the administration of justice.
My Lords, I move Amendment 74 on behalf of my noble friend Lady Ludford. It is a very simple amendment which relates to Clause 36 and the power to exclude the public from proceedings. At the moment, the clause reads:
“If it is necessary in the interests of national security, a court may exclude the public from … any part of proceedings … under this Part, or … any part of proceedings relating to section 69A of the Sentencing Act 2020”,
which relates to the aggravating factors in sentencing so that we are concerned only with criminal proceedings under the Bill. The JCHR has recommended that the interests of justice take primacy over the interests of national security by substituting
“in the interests of national security”
“for the administration of justice, having regard to the risk to national security”.
The justification for that is that, when one is considering the exclusion of the public—which the JCHR has recognised as being of great importance—the interests of justice should take primacy. Of course, if the interests of national security are in conflict with what might normally be seen as the interests of justice, it is likely that the interests of justice will be served by giving way to the interests of national security. However, it is entirely wrong that the interests of national security should be the only interests mentioned in Clause 36, and this was the view taken by the JCHR—that the interests of justice should be mentioned first.
May I say a word or two about the Government’s approach to the recommendations of the Joint Committee on Human Rights? We sometimes feel on this side of the House—and I suspect in a great many quarters—that the recommendations of this objective, well-informed and impartial committee, which is appointed to consider the compliance of proposed legislation with human rights law and principles of human rights, is given far too little shrift by government. We would be very pleased to see a change in that approach, so that recommendations which are very carefully drawn up and researched, and usually in very modest terms, are properly respected. There is a fear that they are routinely disrespected on the basis that the Joint Committee is seen as an arm of the so-called human rights lobby, and treated with something like the Rice-Davies approach of, “Well, they would say that, wouldn’t they?”
That is frankly inappropriate. It is a criticism that is being felt more and more strongly and one that is surprising in light of the fact that many on the Government’s side of this House and the other place are broadly opposed to the continuation of our adherence to all the points of the European Convention on Human Rights. They justify that opposition by reference to the view that the common law and Parliament will always be there to defend human rights, but if the Joint Committee’s recommendations are given such short shrift, there can be little confidence in that assurance.
I accept that that is a digression, but it is an important digression, because my noble friend Lady Ludford’s amendments are directed to the recommendations of the Joint Committee on Human Rights and it is something I hope Ministers will bear in mind. I beg to move.
My Lords, I was not planning to speak on this fairly narrow amendment. The noble Lord, Lord Marks, made all the points relative to the amendment itself. However, it is worth just endorsing his closing comments about the view of the Opposition and Liberal Democrat Benches that the Government are paying too little attention to the recommendations of the JCHR. It appears to be a hurdle to overcome to get over those recommendations. This is a good example; many of the recommendations made are very minor. I just wanted to endorse the point the noble Lord made about the importance of this committee’s work.
I thank the noble Lords, Lord Marks and Lord Ponsonby, for their remarks. Turning first to the subsidiary point in respect of the importance of the reports of the JCHR, I can certainly assure all in the House that the JCHR reports are taken very seriously by the Government and all the recommendations are appropriately considered. I can say that, as a human rights lawyer myself, I fully appreciate the importance of the human rights considerations and the very valuable work done by the committee. I hope my remarks go some way to assuage the concerns that were outlined.
I turn now to the substantive amendment tabled by the noble Baroness, Lady Ludford. This clause replaces Section 8(4) of the Official Secrets Act 1920 and in so doing makes it more explicit that the exclusion of the public from proceedings must be necessary in the interests of national security. The Government consider that the approach taken in the drafting is appropriate given the highly sensitive nature of the material that may be required to be considered during court proceedings in relation to offences under the Bill. It is important to note that the decision to exclude the public from proceedings is taken by the court on application by the Executive, who are well placed to set out the risk to the courts. We consider that the judiciary is already well placed to assess the impact of any such decision on the administration of justice.
The words that this amendment seeks to add are, with respect, unnecessary. In England and Wales, for example, the Criminal Procedure Rules 2020 would apply in such proceedings which already have as their overriding objective that criminal cases are dealt with justly. Therefore, those rules require a court to have regard to the importance of dealing with criminal cases in public and the overriding interests of the administration of justice when determining whether to exclude the public from any part of proceedings. It is clearly right that this clause notes and provides the court with a clear basis upon which to exclude the public on grounds of national security, and that is all that this clause does. For those reasons, the Government cannot therefore accept the proposed amendment and I therefore invite the noble Lord to withdraw it.
My Lords, I shall look carefully at the Minister’s response. For the time being I will certainly seek leave to withdraw the amendment. There may be room for further discussion—there may not. I accept that the overriding objective applies to criminal cases and to dealing with cases justly, but as regards whether it is not sensible that that should take primacy by a special mention in the Bill I am unconvinced at the moment. However, I will read what the noble Lord had to say. I therefore beg leave to withdraw the amendment.
Amendment 74 withdrawn.
Clause 36 agreed.
75: After Clause 36, insert the following new Clause—
“Public interest defence(1) A person subject to proceedings for any offence under sections 1 to 5 of this Act may raise as a defence that the person reasonably believed the conduct alleged to constitute the offence was carried out in the public interest.(2) Where a defence under subsection (1) is raised, it is for the prosecution to prove beyond reasonable doubt that the conduct alleged was not in the public interest.(3) In determining whether such conduct was in the public interest the court must have regard to—(a) the nature of the alleged conduct;(b) the harm caused by the alleged conduct;(c) whether the manner in which the person engaged in the alleged conduct was in the public interest;(d) whether the person engaged in the alleged conduct in good faith;(e) whether the person engaged in the alleged conduct for personal gain;(f) the availability of any other effective authorised procedures for achieving the purpose of the alleged conduct and whether those procedures were exercised;(g) any other relevant feature of the alleged conduct.”Member's explanatory statement
This amendment provides for a public interest defence to the offences under Clauses 1 to 5 of the Bill.
My Lords, I thank the Committee for its indulgence in allowing a 10-minute break. The technical issue involved was entirely mine. I am tempted to say that there was a reasonable defence. It may not have been a public interest defence and I certainly cannot describe it as lawful justification, but nevertheless—
Yes, it was possibly a serious disruption.
We have all received a very large number of briefings calling for a public interest defence, and none of them has suggested that such a defence is a bad idea or that it would imperil national security. I record our thanks to all the organisations which have sent us these briefings, including the BBC, the NUJ, Index on Censorship, openDemocracy, Guardian News & Media Limited and Mishcon de Reya, among many others. The briefings have concentrated largely on the threat to investigative journalism posed by the criminal provisions in the Bill. We dwelled on these at Second Reading, in the first two days in Committee and, to some extent, earlier today, so I will not go into detail. Suffice it to say that the threat to investigative journalism of criminalisation and the accompanying very long sentences is real and chilling—chilling in that the threat will have a deterrent effect on investigative journalism and in that it represents a real and frightening, and not merely theoretical, threat to open democracy.
It seems to be generally agreed that these provisions risk breaching Article 10 of the ECHR, on freedom of expression, a concern that was expressed by the Joint Committee on Human Rights in its report on the Bill. The committee said, at paragraph 172:
“There seems to be a certain level of consensus that a whistleblowing or public interest defence is needed”.
It is also significant that a number of other countries, including our Five Eyes partners Canada, Australia and New Zealand, have some form of public interest defence to charges under similar legislation. However, it is not exclusively investigative journalism or even campaigning that is under threat. Those who expose wrongdoing by public servants or whistleblowing employees are equally at risk and may be equally deserving of an acquittal for an offence under this Bill after deploying a public interest defence.
It is for that reason that the public interest defence in our Amendment 75, in my name and that of my noble friend Lord Purvis of Tweed, goes further than protecting journalists alone. In so doing, it is close to the Law Commission’s recommendation in its 2000 paper, Protection of Official Data, which recommended that there should be a statutory public interest defence to unauthorised disclosure offences which should be available to anyone, civilians as well as journalists.
Therefore, our amendment would apply to all prosecutions for offences under Clauses 1 to 5 of the Bill, not just unauthorised disclosure offences, with which the Law Commission was concerned, but we regard that as right. Disclosure of restricted material is just as capable of being in the public interest as it is of assisting a friendly country’s intelligence service to apprehend or expose wrongdoing, as is entering a prohibited place to photograph or record corrupt transactions involving public servants. All can give rise to prosecution under the Act, and in each case there ought to be a public interest defence.
The defence we advocate is based on reasonable belief, so it relies on a test that is, in part, subjective—“Did the defendant believe their conduct was in the public interest?”—and, in part, objective: “Was that belief reasonable?” Juries are well used to applying that type of test and I suggest it is the appropriate one. By contrast, a wholly objective test of whether or not conduct was in fact in the public interest would impose a burden on juries to make what is essentially a political judgment, no doubt on the basis of conflicting evidence, expert and factual. That would not be the best test of the criminality of a defendant.
We have also maintained the principle that, once the defence is raised, it is for the prosecution to rebut it to the criminal standard of proof. That is the way our criminal law responds to a number of defences, reasonable self-defence being one such. We suggest it is the appropriate response. It would perhaps be different if we were concerned here with unauthorised disclosure by a member of the security or defence services who was bound by an agreed and binding confidentiality requirement. However, we are legislating here for criminal charges against private citizens, who, I suggest, are entitled to the benefits of the usual protections inherent in our criminal law.
In applying the test we advocate, juries would have to consider a number of factors set out in proposed new subsection (3) of the amendment. In formulating them, we have relied loosely, but not exclusively, on the factors mentioned in the Public Interest Disclosure Act 1998, which amended the Employment Rights Act 1996 for the protection of whistleblowers. These factors are designed to steer juries towards a balance between confidentiality and the public interest in disclosure. But we do not argue that these are in final form; at this stage, they are designed to give shape to what we would like to see in a public interest defence.
I repeat what I said the other day in Committee: there is no genuine democratic protection in the requirement that the Attorney-General’s consent should be obtained for a prosecution to be brought. That is a welcome safeguard, but its point is to avoid unnecessary and unmeritorious prosecutions. What is needed for the determination of guilt or innocence on a public interest defence is a trial before a jury, where the defendant has a fair chance to put their case that they reasonably believe that the conduct of which they are accused and which is said to be criminal was in the public interest.
I am grateful to the noble Lord, Lord Coaker, for his amendment but, unlike him though it may be, we say it goes nothing like far enough. We need a defence when the Bill becomes law, not merely an assessment of its possible merits. I note that, in the other place, the amendment of Kevan Jones MP, the Labour Member for Durham and a member of the Intelligence and Security Committee, was nothing like as diffident as that proposed by the noble Lord, Lord Coaker. I also note that Tom Tugendhat, for the Government, promised to engage further with the Opposition on this issue. I sincerely hope that the Minister gives a similar promise to consider the public interest defence, not just because of what we say here but because of the wide interest and concern about the importance of this expressed across the nation. The incorporation of the public interest defence in the Bill would address many of the concerns that these Benches and others have expressed about the dangers to personal liberty in this legislation. I therefore beg to move.
My Lords, I will add very briefly to the comprehensive introduction of the amendments. I thank my noble friend for drafting the amendment and allowing us to debate it in Committee. My remarks relate to the concerns raised by the BBC—just one of the organisations that has been in touch—which I think are extremely significant. I have been very fortunate in my work as the foreign affairs and development spokesman for my party in being able to travel, including to conflict-afflicted areas. Our journalists and our BBC around the world are one of the jewels in our country’s crown. When they raise significant concerns, I think that there is a duty on us to listen to them very carefully.
With our free and fearless press in this country, I think that there is a dichotomy. I am sure that those in the intelligence community know that our free press and our openness make us more at risk; in fact, many journalists doing their job are at risk themselves in many areas. But we are a safer and more open and democratic country because of the press, and we have a higher standing in the world in the long term. So when the BBC raises concerns, as my noble friend indicated, highlighting the Law Commission’s comments about whether we are considerably less likely to not be complying with Article 10 of the ECHR, it is of concern for those recommendations to be ignored.
With the Bill, it seems as if we are now going to be in stark contrast with comparable legislation in other countries, including our closest intelligence partners in the Five Eyes countries. I would like for the Minister, in responding to this, to state why we go far beyond our Five Eyes allies in this regard.
There are a couple of other areas that the BBC raised: one is the criminalisation of the publication of material that is already in the public domain. With sentences of potentially life and 14 years, the chilling effect on journalists could be marked. I hope that that will be responded to very clearly by the Government. Those powers go beyond the Police and Criminal Evidence Act with regards to protections provided for journalistic material.
In Committee so far, we have raised the breadth of the Bill, combined with the extensive sentences that are open to it, and I believe that the chilling effect on our media will have a negative impact on our country overall. If they do not accept my noble friend’s amendment today—which I suspect the Minister will not—I hope that the Government will engage with him and with others who want to see the Bill work, but work by protecting the essence of our country, which is what my noble friend outlined.
My Lords, I think this amendment has substantial problems. If I may, I will remind the noble Lord, Lord Marks, of what Article 10 actually says—I have borrowed the iPad of the noble Lord, Lord Carlile, which is still working, my iPhone having died. The second paragraph of Article 10, after talking about freedom of expression, says:
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security”,
and a string of other things are added to that. I just remind the noble Lord of that qualification.
If the BBC and others are making such remarks, then of course we should take them seriously. I have not received all this briefing, but perhaps that is understandable. It is superficially attractive to have a defence of public interest, but let me explain to the Committee why it is really very difficult. From it, the risk of release of national security information is substantial. What does that mean? National security information includes information that can indirectly identify the sources of intelligence, whose lives may be at risk. It can identify sources and methods that are vulnerable and unable to be defended.
There are a number of really problematical areas in the amendment. It risks emboldening an individual who wishes to release national security information in the hope that they can rely on a public interest defence. Proposed new subsection (2) suggests that the prosecution has
“to prove beyond reasonable doubt that the conduct alleged was not in the public interest”,
but the reality is that it will be very hard to prove that without compounding the damage already caused by the release of the information.
There is also a high risk of the individual making a miscalculation on whether the public interest in disclosure outweighs the public interest in maintaining secrecy. Even if the person leaking that national security information believed in the nobility of what they were doing and had no malign intent, which I can accept, it could have catastrophic impact, leading to serious harm and loss of life. There is a real difficulty of rebuttal at trial, as I mentioned, because of compounding the damage, even when the individual had malicious intent.
I think we will come to talk about the whistleblowing amendment from the noble Baroness, Lady Kramer, who is not in her place but to whom I have talked a little about this. At the risk of saying now some of what we will say then, I want to reassure the Committee on the channels available. I can talk only for MI5, but if members of the service are concerned about wrongdoing they can go to the senior legal adviser, to the ethics counsellor—an appointment made when I was director-general—to talk about ethical issues about which they are concerned, and to the director of policy, security, and information and compliance. These are designated officers with whom real matters of concern can be raised. They can also go to the external staff counsellor, who sits in the Cabinet Office. They may also, with permission, which would be given, go to consult the Permanent Under-Secretary of State of the Home Office; the National Security Adviser; the Cabinet Secretary; the chair of the Intelligence and Security Committee; the Comptroller and Auditor-General, if it is a matter of financial wrongdoing; or the Attorney-General, if it is a legal issue.
I am sure that noble Lords will wish to go into that in a bit more detail when we come to talk about the whistleblowing amendment, but at this stage I would say that the amendment, however attractive on the surface, potentially represents a quite serious threat to national security. There are provisions for people to raise substantial concerns through various channels.
My Lords, I share the view that I think is being proposed, at least implicitly, by those who tabled the amendment that nobody should be prosecuted if a prosecution would be contrary to the public interest. Indeed, I share the view that nobody should be prosecuted if their belief, however unreasonable, was that something was in the public interest. I would hate to see a wholly unreasonable person prosecuted for something that they believed was in the national interest if, for example, they suffered from a psychiatric condition that made their belief totally irrational.
I have to say that I believe that this clause does not achieve the purpose which it is purported to achieve. The noble Lord who opened this debate did say—I recognise this—that he is not claiming this is a perfect clause, but I suggest that, if we are to have a clause anything like this, it needs an awful lot of work done on it. As drawn, subsection (3) in effect means that a jury would have to decide, in part at least, whether what the defendant had done was or was not in the public interest and then go on to decide whether the belief that they had that it was in the public interest was reasonable. I think it is very difficult to draft a credible and usable clause that achieves the end that is aimed for.
Indeed, my belief is that the target of this amendment is wrong. The target should be that people are not prosecuted for offences that should not be offences. We should try to remove from this Bill those parts which tend to criminalise, for example, journalists, rather than using a clause of dubious validity and coherence such as this.
There are criminal charges, mostly regulatory offences and often strict liability offences, in which there is a defence of reasonable excuse. A defendant can raise the evidential burden that they had a reasonable excuse for certain activities, and the prosecution then has to disprove the claim of reasonable excuse. There are torts, for example in defamation, where a public interest defence is specifically provided for, and that has been heavily litigated, including a very important judgment that was given by my noble and learned friend Lord Hope in one relatively recent case.
However, so far as I am aware—and I am sure I will be corrected if I am wrong—I do not know of a criminal offence where a jury has to decide what was in the public interest, and I would urge those who believe that this is something that could be placed before a jury to have sympathy with the courts that would have to deal with this provision, because judges in every case have the very important responsibility of summing up the law to the jury, and they would have to describe to the jury a reasonable definition of the public interest. That would have to be done, under current practice, by judges in writing, handing a document, a route to verdict, to the jury—and I apprehend that this provision would create impossible difficulty.
I return with an apology to something that I said in an earlier debate this evening about the public interest. Subsection (3) actually does set out tests which I imagine are habitually applied by the Director of Public Prosecutions if he—it is he at the moment—is determining whether it is in the public interest for a prosecution to take place. That is the right location for this decision to lie. What is set out here is the responsibility of the Director of Public Prosecutions. I apprehend that, in the sort of case that those tabling this amendment have in mind, it would be extremely rare for the DPP to decide that it was in the public interest for a prosecution to take place. That is not the role of the jury, and in my view it would be a serious mistake to make the judgment of the public interest the role of a jury.
My Lords, I have very little to add to that brilliant exposition of the difficulties with this amendment. As I said in relation to a previous amendment, I am of course very concerned with any threat to public interest journalism, and therefore I have some initial sympathy with the idea of a public interest defence. But I am afraid that, the more I looked at it and thought about it, the more I was convinced that this was not the answer. As the noble Baroness, Lady Manningham-Buller, pointed out so cogently, Article 10 is not an issue here. Article 10 has always been a qualified right. There is no violation of the convention by the absence of a public interest defence.
I am particularly concerned about proposed new subsection (2). It seems to me that what is contemplated is that, if a defendant raises some prima facie case that they disagree with government policy, or whatever their general justification is for being in breach of one of the very serious offences to which this would apply, the prosecution will have to prove that the conduct was not in the public interest. It is difficult to know how that can be done without potentially disclosing matters that, in the interests of national security, it might be most unwise to disclose. In fact, it might even result in the prosecution not going ahead because the prosecution might take the view that it would be too damaging to disclose this. That itself would not be in the public interest in appropriate cases.
I echo what the noble Lord, Lord Carlile, said. A jury would be given a complex direction in writing. I can then only anticipate—I have had this experience myself, but not in this sort of case—that the jurors, who may be bewildered by a direction such as this, would ask a series of supplementary questions. What is meant by this? How do we respond to this? What if we agree with the defendant but do not think this? Et cetera, et cetera. It is difficult to conceive of this being a very satisfactory procedure, or indeed in the public interest.
So, although I sympathise with what lies behind this, I am concerned that the Bill could be altered more satisfactorily to protect journalists and whistleblowers. I am afraid that this is not the answer.
My Lords, I rise to speak primarily to my diffident amendment, which is none the less an important one. I agree with much of what the noble Lord, Lord Marks, said and what he seeks to achieve in his amendment. As he said, it is based very much on what Kevan Jones MP said on new Clause 5 in the debate in the other place.
I am going to leave to one side the notes I had written for this, because it is such an important debate and discussion. The amendment I put down was just a probing amendment to see that it was debated, but now I can see the sense of it, because in the remaining time for the Bill we will not have the opportunity for hours of debate about what a public interest defence should or should not be. But it is not going to go away.
As the noble Baroness, Lady Manningham-Buller, eloquently told us—supported by the noble Lord, Lord Faulks, and others—there is a view that a public interest defence, if you are not careful, will compromise national security in the ways that were outlined. We cannot ignore that, but neither can we ignore the fact that many respected organisations fundamentally believe that the Bill as drafted will both cause a problem with respect to those who wish to act as investigative journalists, which none of us would wish to see compromised—I know that this will be debated later on the amendment on whistleblowing from the noble Baroness, Lady Kramer —and prevent somebody who works in a service exposing serious wrongdoing. The wrongdoing going on might be so serious that, on reflection, we would be pleased that they had brought it to the public’s attention. There is a real conflict here between those two points of view.
Nobody wishes to compromise national security or to curtail the opportunity for people to reveal things which are in the public’s interest. But having put a probing amendment down, it seems that my amendment is one way to try to wrestle with this problem in slower time, while we reflect on how we bring all this together. As I say, we cannot just dismiss all the institutions and organisations, including very respected people, who want a public interest defence. They include the Law Commission and many others such as Mishcon de Reya, who have sent us all a really informative argument for why there should be a public interest defence. They have pointed to various cases, some historic and some not so historic, to give examples of where a public interest defence may have helped.
I am sure that noble Lords will have seen those and can think of many in the past. People will have different views about whether they were right or wrong—whether Katharine Gun was right or whether the Clive Ponting case highlighted anything. The 2018 Intelligence and Security Committee’s review of what happened between 2000 and 2004 said that, had there been a public interest defence, that might have been exposed earlier. That point may be wrong, but the point I am trying to make is that we should not shy away from difficult debates and discussions when we are trying to put legislation together.
I have put my notes down, although I will come back to one bit of them in a minute, because that is the dilemma facing us. I think the Government themselves recognise that dilemma, hence the point made by the noble Lord, Lord Marks: that Tom Tugendhat MP said that the Government were reflecting on it. I try to inform the comments that I make from the Dispatch Box, because that is the way I am, so I looked at what the Government themselves were saying. In their response updated on 12 July 2022, the Government said this about public interest. I say an excuse me to the Committee for reading it but I need to do that and make a couple of comments afterwards; it is not too long.
The Government’s own explanation said:
“To enable wrongdoing to be exposed safely while ensuring that the Act remains workable to protect UK national security, the focus should be on making sure that individuals can make disclosures in a safe way, for instance through proper, protected routes for making an authorised disclosure. The Government is committed to ensuring that these routes are clear and accessible to individuals across government. Therefore, the government is updating guidance for government departments and bodies to ensure that there are safe and effective whistle-blowing routes available to all current and former staff and contractors who may wish to raise a concern.”
Is that relevant to what we are discussing? Is it irrelevant and has nothing to do with it? If they are updating guidance, who is being told about that update? If every department is doing it, what does that mean? Is it every department and agency of government, and what is the process for updating that guidance? Are we, as the legislature in the other place and here, going to get sight of that guidance and, if it is going on, why is it not informing this Bill as it goes through? If the Government are trying to create safe and secure routes for individuals past and present to whistleblow or tell what has happened, what are those routes and what guidance is being updated?
I am not sure that the Minister will be able to respond to that, but if it is relevant, which I believe it is, then there should be something to inform this Committee of what that response means with respect to these measures. As I say, I have put down my notes because there is nothing wrong with what the noble Lord, Lord Carlile, and the noble Baroness, Lady Manningham-Buller, have said—or indeed what the noble Lords, Lord Marks and Lord Faulks, said. Nobody is wrong, but how do we resolve that conflict within what all of us want, which is the maintenance of investigative journalism and the ability of people to tell where there is serious wrongdoing, but in a way that does not impact on the national security of our nation, which we all support?
This dilemma cannot just be put in the “too difficult” pile; it cannot be put somewhere we can all reflect on it “at some point”. We somehow have to find a way to try to reconcile this conflict which gives certainty to the legislature, while ensuring that all of us can maintain the confidence we have in our democracy that serious wrongdoing can be exposed and simultaneously protecting national security—that should not be beyond us. That is why the amendment tabled by the noble Lord, Lord Marks, although not correct in every detail, is important, and why my amendment has been brought forward: to try to tease out, from the Government and this Chamber, people’s views on how we take this forward in a way which commands general support.
I thank noble Lords for a very interesting debate on a topic of considerable public importance. These amendments concern the introduction of a public interest defence to the offences in the Bill. Amendment 75 adds a PID to Clauses 1 to 5. I am very grateful to those who have contributed to this short debate, including the noble Baroness, Lady Manningham-Buller, and the noble Lords, Lord Carlile and Lord Faulks, with whom I find myself in agreement, particularly on their concerns about the practical consequences of this amendment, as well as on the concerns raised by the noble Lord, Lord Marks, on the application of Article 10 of the European convention. I therefore greatly welcome the display of expertise from all sides of the House.
It would be helpful for me to start by talking briefly about the genesis of these offences and the interaction with the Law Commission recommendation for a public interest defence. In this amendment, there is a significant risk of conflating the various Official Secrets Acts, so I will take a little time to clarify those Acts, because it is vital that we are precise in this context. Four Official Secrets Acts are in force: the 1911, 1920 and 1939 Acts, which deal with espionage, and the 1989 Act, which deals with unauthorised disclosures, often described as leaks.
The Law Commission, in its 2020 report, considered all four Official Secrets Acts. Starting with the 1989 Act, the Law Commission recommended the inclusion of a public interest defence, not in isolation but rather as part of a package of reforms to that Act. It is important to stress that the Bill does not seek to reform the 1989 Act, which remains in place as the relevant legislation to govern unauthorised disclosures of specified material; for example, in relation to security and intelligence, defence or international relations. For that reason, I can answer the very fair question from the noble Lord, Lord Coaker, as to whether this was a relevant or irrelevant issue with the clear indication that it is not relevant to this amendment. When asked about the omission of the reform of the 1989 Act from the Bill, the Law Commission made clear, in its oral evidence to the Commons committee for the Bill, that it did not expect one single piece of legislation to address all aspects of its report.
I turn to the 1911 to 1939 Acts, which this Bill replaces. The Law Commission made a number of recommendations with respect to reform of those espionage laws, but crucially did not recommend the inclusion of a public interest offence. Again, during its oral evidence to the Committee for this Bill in the other place, the Law Commission was clear that, in its view, the requirements of the offences take them outside the realm of leaks and into the realm of espionage. It is worth also noting, as the noble Baroness, Lady Manningham-Buller, correctly observed to the Committee, that within the security services themselves there are elaborate whistleblowing mechanisms already in place for the declaration of unlawfulness, as she has already outlined.
Let me put it very clearly on record that the offences in Clauses 1 to 5 of this Bill are not intended to have a chilling effect on legitimate whistleblowing. As I have said, the Committee has this evening already heard first-hand of experience of the mechanisms in respect of whistleblowing in the security services. The provisions in this Bill are about espionage, and I am sure that the Committee would strongly agree that espionage against the United Kingdom can never be in the public interest, although I appreciate that that is not what noble Lords are implying by tabling this amendment.
I am pleased to confirm that the Government are, of course, willing to continue to discuss the proper protections for legitimate activity, as the Committee has expressed and the noble Lord, Lord Purvis, in particular, has requested. The noble Lord, Lord Coaker, asked for further details on the Government’s efforts to keep whistleblowing guidance under continuing review, and I can confirm that that work is ongoing. No doubt it can be discussed further, in a similar way.
I am afraid that I am unaware of the precise timeline—I will find out. If the matter is not discussed in relation to the Kramer amendment, obviously I shall write to the noble Lord in respect of it.
I turn to the offences themselves, and the aspects that we consider move them away from capturing legitimate activity. For the Clause 1 offence of obtaining or disclosing protected information, the activity has to be for a purpose prejudicial to the safety or interests of the United Kingdom. It is right that we are able to prosecute disclosures of protected information when it is clear that a person intended to harm the UK and was working for or on behalf of, or with the intention to benefit, a foreign power. Legitimate whistleblowing would not meet all the requirements of this offence.
The Clause 2 offence of obtaining or disclosing trade secrets is designed to tackle the illicit disclosure and acquisition of sensitive commercial information amounting to a trade secret for, on behalf of, or for the benefit of a foreign power. For the offence to be committed, the activity has to be unauthorised, and the person has to know, or ought reasonably to know, that their conduct is unauthorised. Someone who disclosed information in the course of using lawful and appropriate whistleblowing routes would not be conducting unauthorised activity.
The Clause 3 offence criminalises assisting foreign intelligence services. The offence can be committed in one of two ways: either by conduct of any kind that a person intends will materially assist a foreign intelligence service, or by conduct that it is reasonably possible may materially assist a foreign intelligence service and where the person knows, or ought reasonably to know, that that is the case. The material assistance must be material assistance in carrying out UK-related activities. The expression “UK-related activities” means activities taking place either inside the United Kingdom, or those taking place outside the United Kingdom which are prejudicial to the safety or interests of the United Kingdom. Legitimate whistleblowing activity should not meet the threshold for an offence under Clause 3, such as intending to materially assist a foreign intelligence service in carrying out covert operations in the United Kingdom.
I move on to the offences in Clauses 4 and 5, which criminalise harmful activity in and around prohibited places. It is right that we are able to prosecute relevant activity around the United Kingdom’s most sensitive sites where it is clear that such activity has been carried out to harm the United Kingdom. Activity carried out to harm the United Kingdom in this way cannot be in the public interest.
Clause 4 allows the prosecution of those who intend to harm the UK with their actions, while Clause 5 covers those who conduct specified activity relating to those sites where they know it is unauthorised. I am sure that the Committee would agree that it would not be in the public interest for an individual to enter one of the UK’s most sensitive sites when they know that they are not authorised to be there.
I understand that there may be specific concerns around the public interest in protests being allowed to take place near these sites. However, as outlined, protesters would be caught only if the activity is conducted with a purpose prejudicial to the safety or interests of the United Kingdom, or if the person knows or ought reasonably to know that the conduct in question is unauthorised. A legitimate protest therefore would not meet these tests.
The same applies to journalists conducting activity near these sites. For example, a journalist taking photos from outside a prohibited place, where they do not have a purpose prejudicial to the safety or interests of the United Kingdom and there is no signage to say it was not permitted, would not commit an offence. As we have already committed to in an earlier debate in Committee, the Government will work with the police to ensure that there is clear guidance in place to ensure that protests and other legitimate activity is policed appropriately.
I hope that my explanation has been helpful in explaining why it is the Government’s clear position that these offences are sufficiently tightly drawn so as to be targeted at harmful espionage activity—
The Minister knows that, on previous days in Committee, we have discussed the issue of how the interests of the United Kingdom are defined and how broad that is. Whom does he believe should be the final arbiter in defining what is in the interests of the country and in the public interest?
The noble Lord’s question as I understand it is whether the decision about public interest is one for the police or for the prosecutor because, in reality, that is where the decisions would lie. Ultimately, if both those bodies were satisfied and a prosecution were brought, the issue would be one for the court.
It is our position that a public interest defence is neither necessary nor appropriate. However, it is important to point out that, even if the Government were to accept the case that the offences risked criminalising such legitimate activity, a public interest defence would not be an appropriate way to address this issue. As crafted, the proposed defence puts the onus on the Government to prove “beyond reasonable doubt” that the defence did not apply. This defence would therefore act as an open invitation to those who seek to conduct espionage against the United Kingdom, and disproving this defence would likely require the disclosure of further sensitive material and only serve to compound the original harm.
The consequence of this is that those who intend to harm the United Kingdom will be able to exploit this defence to continue conducting harmful activities in the knowledge of the prosecution difficulties that would be faced by the authorities. This would limit the effectiveness of the legislation in enhancing our ability to deter and disrupt harmful activity.
Amendment 120B, proposed by the noble Lord, Lord Coaker, would require the Minister to publish an assessment of the potential merits of introducing a public interest defence. As I have just laid out, the Government have extensively considered the merits, or otherwise, of such a defence, and this renders a review after the Bill’s passage unnecessary, for the reasons I have already set out. Thus, for all these reasons, the Government cannot accept the tabled amendments.
Before the Minister sits down, I am conscious that, as the noble Baroness, Lady Manningham-Buller, mentioned, we will come on to the whistleblowing aspect, but the Minister was at pains to quote liberally from the Law Commission’s evidence to the Public Bill Committee in the Commons on this. I of course have read the evidence, as others will have done. I was interested when it came to the disclosure of information element, because Professor Penney Lewis told the Public Bill Committee:
“Indeed, we recommended a mechanism for authorised disclosures to an independent statutory commissioner, which would have appropriate investigatory powers to look into, for example, disclosures that might be embarrassing to the Government.”—[Official Report, Commons, National Security Bill Committee, 7/7/22; col. 52.]
Why are we not legislating for that in the Bill? The Minister seemed to have accepted everything that the Law Commission had said, but not this.
It is clear, in the view of the Government, that those issues relate to the provisions found in the 1989 Act, which are not addressed in the Bill. While I note that evidence, it is not relevant to this amendment. As I have already said, I therefore invite the noble Lord to withdraw his amendment.
My Lords, I will be asking for leave to withdraw this amendment, not on the basis that it will go away but on the basis that, first, there is room for further discussion, even though only a chink has opened up in what the noble Lord, Lord Murray, has had to say; and, secondly, on the basis that I accept that the amendment is not perfectly drafted and we would like to take further advice and further consider a number of matters in the drafting of the Bill. What I will say, very briefly if I can, about the amendment and the response of the Minister and the other speeches we have heard, is that this question has to be taken in the context of the introduction of the Bill.
There can be no doubt that the Bill will manifestly broaden the ambit of national security and protection legislation: first, because it is targeted not at individuals who have an obligation to the state but generally at citizens; and, secondly, in the way that the Bill is drafted. We talked about this a great deal last week, when we noted the inclusion of expressions such as, “know or reasonably ought to have known”, “conduct that it is reasonably possible may materially assist a foreign intelligence service” and all those peripheral expressions. Indeed, we note the use of the phrase “prejudicial to the interests of the United Kingdom” when we know “the interests of the United Kingdom” are determined by what the Government of the day believe those interests to be. All those broaden the ambit of these criminal offences.
I completely agree with the noble Lord, Lord Coaker, that this issue is not going to go away. All the briefings we have had from journalists and organisations tell us how important a public interest defence is. I completely take on board the point made by the noble Baroness, Lady Manningham-Buller, repeated by the noble Lord, Lord Faulks, and by the Minister, that Article 10 on freedom of expression is a qualified right. Of course, people of legal distinction can disagree, but it is entirely wrong to suggest that the Law Commission does not contain people of legal distinction.
If it were translated into a consideration of this Bill, because there is no material distinction on the disclosure points, I feel confident that the Law Commission would come out with the same recommendation as it did in 2020. We also have the recommendation of the Joint Committee on Human Rights in relation to a public interest defence. It is very difficult to argue that the fact that it is a qualified right under Article 10 does not mean that it would apply. Of course, we, the Law Commission and the Joint Committee on Human Rights have read the whole of Article 10 and understand the qualification, but the overwhelming point is the phrase
“necessary in a democratic society”.
Everything else is subject to that in the qualification.
Just so that I understand, is the noble Lord saying that the absence of a public interest defence, whether framed in the manner of this amendment or in a similar or a different way, means that the Bill would automatically be a violation of Article 10 of the European convention?
As drafted, I fear that it would. Since we have had absolutely no indication that concessions will be made to all the amendments we discussed last week—I rather doubt that we will get them—it seems to me that investigative journalism will be seriously affected in a way that risks being a serious breach of Article 10. It might be saved by the qualification suggested by the noble Baroness, Lady Manningham-Buller, but I do not accept that that case is made out.
I entirely accept the noble Baroness’s point that the damage of publication cannot be recalled, but a balance must be struck which takes into account the interest in disclosure against the interest in secrecy. We emphasise the importance not just of free investigative journalism in a democratic society but of the control of wrongdoing. For my part, I cannot see anything in what the Minister said which comprehensively puts paid to the idea that there could be a cover-up of wrongdoing not possible for citizens to redress by disclosure without being subject to criminal proceedings under this Bill.
I reassure the noble Lord that I do not believe that any of my former colleagues would want wrongdoing to be concealed. In balancing secrecy and the public interest, you have to analyse what secrecy is there for. Of course, secrecy can be used wrongly and attached to things which are not secret. However, I am talking about things where revealing the information could compromise the lives of individuals at that level. Making that judgment is pretty tough on a court, without knowing the full context. To defend against that, prosecutors would have to compound the damage. Of course, wrongdoing should never be covered up, but secrecy is not there just for the sake of it. It is there to protect lives and methods.
I accept entirely that this is a very difficult issue and that the balance to be struck is very difficult. The noble Lord, Lord Coaker, mentioned the case of Clive Ponting, where there was undoubtedly government misinformation and wrongdoing. Clive Ponting was not a journalist; he was a former civil servant. In fact, he wrote books as well, including one on the truth about the “Belgrano”. Nevertheless, what he did was important. It is vital to our democracy that juries have the right—as one did in that case against the direction of the judge, because there was not a public interest defence—to say, “No, we will not convict because there has been wrongdoing.” A jury should not have to defy a judge and misapply the law because of the absence of such a defence to avoid covering up wrongdoing.
Of course I accept the point about drafting from the noble Lord, Lord Carlile, and that this amendment is not perfect. Indeed, it was he brought up the Ponting case at the very first instance in these proceedings. However, as the noble Lord, Lord Coaker, said, we cannot run away from drafting a public interest defence, if that is necessary, because the drafting is difficult. It is a different topic, but in Section 4 of the Defamation Act 2013 we have a defence of reasonable comment on a matter of public interest. I was on the pre-legislative scrutiny committee for that Act, and we considered very carefully how that would work. However, at that stage—although they are rarer now as a result of that Act—these were matters for determination by a jury, and a jury can determine such a public interest defence.
First, with great respect, jury trial was effectively abolished by the Act that the noble Lord is talking about. Secondly, it put into statutory form a so-called Reynolds defence in a civil claim. Here we are talking about prosecutions of criminal offences of the most serious sort. The analogy is not appropriate.
I disagree—a fortiori, if such a defence is appropriate in a defence to a civil claim, it is appropriate in a defence to criminal proceedings that carry maxima of 14 years and life imprisonment. We may differ on that; nevertheless, of course I note that jury trial was abolished for defamation by that legislation. However, when we were considering the public interest defence, the abolition of jury trial was not then in mind; we had always had jury trials, and still can do in rare cases.
The only other point I wish to make is in answer to the noble Baroness, Lady Manningham-Buller. Of course, in the case of whistleblowers, there are other avenues to pursue for those employed by the security services, but there are two answers to that point. The first is that we are not just concerned with those employed by the security services, or those employed by anybody in particular. We are concerned with offences designed to be used and prosecuted against ordinary citizens. Secondly, we have included in our amendment—it is one of the best drafted parts—that one of the factors to be taken into account would be
“the availability of any other effective authorised procedures for achieving the purpose of the alleged conduct and whether those procedures were exercised”.
That will always be an important point, because it answers the point that you could have gone to an authorised body for the protection of whistleblowers.
This issue is not going to go away. I suspect we shall come back to it on Report, and that there will be a vote on it. The amendment may be in a very different form, but nevertheless, with these very serious criminal offences, I cannot accept that a public interest defence is not in the interests of the public and the nation. I beg leave to withdraw the amendment.
Amendment 75 withdrawn.
Clause 37 agreed.
House adjourned at 10.03 pm.