National Security Bill

Report (1st Day)

Clause 1: Obtaining or disclosing protected information

Amendment 1

1: Clause 1, page 1, line 9, after “or” insert “having regard to other matters known to them” Member's explanatory statement This amendment clarifies the meaning of “ought reasonably to know”.

My Lords, before I speak to the amendments in this group, I would like to talk about some of the reasons why we are introducing them. Some of our amendments have been brought forward to reassure noble Lords and others that the offence will not capture the genuine work of journalists. We have listened to the concerns raised by the media sector and noble Lords in the House, and some of these amendments are a direct response to them.

The Government have heard from media stakeholders who believe that they could no longer hold the Government to account and that these clauses could inhibit the publication of articles critical of the UK’s defence or security response. I want to address those concerns directly. The Government are committed to defending our freedoms—values which define us and make us who we are. Few are more fundamental to that than freedom of the press. There is no intention to stifle or censor the media’s ability to expose or shine a light on issues. That is the proper role and function of the media and why the UK is such a strong advocate of media freedom globally.

Before we get into the details of individual provisions, I remind the House that these provisions replace the existing law in the Official Secrets Act 1911. We have been provided with a number of examples of journalistic reporting that have been cited as part of the case that more must be done to protect journalists in this Bill. Even were the Government to accept that any of these examples could hypothetically be caught by any of the offences, the same would be true of the existing laws. Accordingly, great comfort should be taken from the fact that no prosecutions of journalists have taken place under the espionage laws to date. I want to confirm again, on the record, that the focus of the Bill is on protecting the UK from threats from foreign states and those acting against UK interests, not interfering with the free press.

My Lords, I thank the Minister for the helpful explanation of the many government amendments in this group. I thank him and the Government also for the considerable movement they have made in response to criticisms made by me and many others at Second Reading and in Committee of the breadth of the offences under Part 1. We are very grateful to the Government for the comprehensive way in which they have listened to our criticisms and moved towards positions that we have taken.

In particular, the troublesome phrase “ought reasonably to know” has been clarified by the qualification that what a defendant ought reasonably to have known falls to be judged having regard to other facts known to that defendant. Furthermore, in Clause 3, as the Minister explained,

“conduct that it is reasonably possible may materially assist a foreign intelligence service”

becomes conduct that “is likely to” materially assist a foreign intelligence service.

I welcome the new strengthened review provisions introduced by the new clause proposed in Amendment 85, in place of the old Clause 56. These and other concessions in the amendments moved by the Government allay many of our concerns.

However, there is one area left untouched that we say is still completely wrong: the failure to tighten up the definition of the

“interests of the United Kingdom”.

That is the subject of our Amendments 2 and 3, and the corresponding amendments wherever the phrase

“safety or interests of the United Kingdom”

appears. I note the word “or”: the interests of the United Kingdom alone are enough to qualify. It is principally in support of those amendments that I speak now.

As I pointed out in Committee, the interests of the United Kingdom are effectively synonymous with the interests of the Government of the day—not in a party-political sense, granted, but in the sense of how the Government perceive the national interest. As the Minister and others pointed out in Committee, that derives from the well-known case of Chandler v the Director of Public Prosecutions in 1964, which defined the phrase as meaning

“the objects of state policy determined by the Crown on the advice of Ministers”,

and it is a commonplace to suggest that the perception of the interests of the state differ between Ministers, between Governments and between political parties.

We argue that it is not the purpose of a national security Bill simply to protect the general policy objectives of the Government of the day. The proper function of a Bill about national security is the protection of the security and defence interests of the United Kingdom. It was pointed out by some, in response to our amendments in Committee, that security needs to encompass economic security, and I accept that. Therefore, we have added to our amendments in Committee, which merely used the words “security” or “defence interests” to qualify them in every case, making it clear that the security or defence interests of the United Kingdom may include the interests of the United Kingdom in its economic security.

However, without a narrower definition of the interests of the UK, the Bill contains a worrying restriction on investigative journalism and campaigning where conduct that could be taken to breach Clauses 1 to 5 might be contrary to government policy, and such policy might, as the Bill is drawn, have nothing to do with security but could embrace, for example, environmental protection, energy policy, safety standards, food standards, water quality, international competition in trade, immigration—the list could be endless. As the Bill is structured at the moment, disclosing any restricted information which came into a journalist’s or campaigner’s hands for a purpose that is contrary to government policy in any policy area could constitute an offence under Clause 1, provided that the foreign power condition were met. The problem is worse because, under the Bill as drawn, any friendly Government are to qualify as a foreign power, with the sole exception of Ireland. We believe that these offences should be restricted to cases where national security, to include economic security or the defence interests of the United Kingdom, is threatened.

That is the case for our amendments. I turn briefly to the other amendments in this group. Amendment 18 is in the name of the noble Lord, Lord Black of Brentwood. It relates to the Clause 3(2) offence of assisting a foreign intelligence service and would establish a defence where the conduct was

“with a view to publication of material by a recognised news publisher.”

We would support that amendment but, as we will explain on the next group dealing with the public interest defence, we believe it does not go far enough.

Amendment 72, in the name of the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Pannick, would amend the foreign power condition to limit its application to conduct carried out for purposes of journalism to those cases where the conduct in question was instigated by or under the direction and control of a foreign power. We would support that amendment also.