National Security Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

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

My Lords, our Amendment 6 would omit Clause 1(2)(b). Your Lordships will know by now that Clause 1(2)(a) deals with protected information as being when

“access to the information, document or other article is restricted in any way”,

as my noble friend Lady Ludford has explained. However, Clause 1(2)(b) goes on to say that

“it is reasonable to expect that access to the information, document or other article would be restricted in any way”—

that way being entirely unspecified.

It is our position that the inclusion of Clause 1(2)(b) takes the clause far too wide. There is no answer to who would be doing the restricting, or what the determinant would be of when and how it would be reasonable to expect restriction. It might be completely reasonable to expect a mad authoritarian Government to restrict the most innocuous but possibly controversial informational document for the purpose of saving public or national embarrassment. Yet that would not make the entirely unjustified restriction on the information or document any less unreasonable; nor would it make the removal of the document from the public domain more justifiable.

This is a misplaced provision, and it should go. We agree with my noble friend Lady Ludford on the JCHR’s Amendment 4, that the restriction of prohibited information ought to be limited to “secret” and “top secret” categories as a matter of definition.

[Lord Anderson of Ipswich (CB)]

My Lords, I apologise for not being present at Second Reading. I cannot even claim, like the noble Lord, Lord Purvis of Tweed, that I was broadcasting the benefits of line-by-line scrutiny to a foreign power. I was performing a long-arranged judicial function in the Channel Islands.

I am well disposed in principle to Clause 1, and I entirely understand why the concept of protected information is not limited to “secret” or “top secret”, as the JCHR recommended. However, in the interests of obtaining a little more clarity, perhaps I might press the Minister on this point. Paragraph 63 of the Explanatory Notes states:

“Protected information includes, but is not limited to, classified material.”


Three examples are given. One is about information on the identity of police officers working with security and intelligence services. One is about information on intelligence officers operating in a foreign state. I suspect that they do not get much more classified than that. One is classified information on a defence system.

Bearing in mind that those examples appear to relate to classified information, I would be grateful if the Minister could explain, first, what circumstances he can envisage in which it should be an offence to obtain or disclose information that is not classified, or that could not reasonably be expected to be classified, applying Clause 1(2)(b). Secondly, how is one supposed to know that non-classified information is protected, given that the only controlling factor, other than the purpose of protecting the safety or interests of the United Kingdom—which, as the Committee has just heard, is very broadly framed—is that access should be restricted in some way? On one view, “restricted” could apply to anything, however innocent, that is not actually published. I assume that such a broad meaning is not intended, but could the Minister give us more of a clue as to where the line is drawn?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group relates to the new offence of obtaining or disclosing protected information. Both amendments pertain to what information should be included in this offence. While the offence currently applies to all restricted information, Amendment 4, moved by the noble Baroness, Lady Ludford, would confine the offence to “secret” or “top secret” information. This amendment reflects recommendations by the JCHR.

His Majesty’s information assets may be classified into three types: “official”, “secret”, and “top secret”. The practical effect of the amendment is therefore to exclude the disclosure of “official” information from the offence. However, according to a 2018 Cabinet Office paper, official information could have

“damaging consequences if lost, stolen or published in the media”

but is

“not subject to a heightened threat profile.”

The Official Secrets Act 1989 includes offences on the disclosure of each classification of information. Amendment 6, tabled by the noble Lord, Lord Marks, and which the noble Lord, Lord Purvis, put his name to, leaves out part of the definition of protected information, which states that

“it is reasonable to expect that access to the information, document or other article would be restricted in any way”.

As noted by the noble Lord, Lord Marks, and in the Explanatory Notes, this is a subjective view of the information.

Given that security officials and civil servants would likely have knowledge of whether or not information is restricted, the inclusion of this line, which would create an offence for when a person should reasonably expect it to be restricted, could impact journalists and civil society. I therefore think that this is an opportunity for the Minister to clarify how he expects that people should be able to reasonably expect that information is restricted or not. I look forward to his response.