National Security Bill

Baroness Manningham-Buller Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Purvis of Tweed (LD)]

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.

[Baroness Manningham-Buller (CB)]

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.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

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.

[Baroness Manningham-Buller (CB)]

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.

[Lord Marks of Henley-on-Thames (LD)]

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.