National Security Bill

Debate between Lord Sharpe of Epsom and Lord Black of Brentwood

Report stage
Wednesday 1st March 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords who have spoken in this debate for their very warm words. The strength of opinion highlights how important journalistic freedom is, and the Government take it extremely seriously. Whistleblowing will be dealt with in the next group, so if the noble Lord, Lord Purvis, allows, I will not deal with it in my response.

I am very grateful to my noble friend Lord Black for his amendment and for his general comments in support of this Bill. As I have said, we have listened to concerns raised by the media sector and noble Lords. The Government’s amendments are a direct response to them. I will endeavour to provide the clarity that my noble friend Lady Stowell asked for.

On my noble friend Lord Black’s amendment, the Government cannot accept a defence linked to the definition of a recognised news publisher. Rather than taking activity out of scope, the defence would act as a way for foreign powers, particularly those seeking to cause the UK harm, to avoid prosecution under this clause and engage in harmful espionage activity. If a journalist is deliberately colluding with a foreign intelligence service in relation to their UK-related activities, such as by revealing intelligence capabilities that could be exploited by that intelligence service, it is absolutely right that they should face criminal sanction.

I acknowledge that the amendment seeks to provide a targeted protection for journalists by referencing “a recognised news publisher”. The Government have serious concerns that any individuals working under the cover of journalism in foreign media organisations operating in the UK would be able to abuse this provision. Even if hostile state actors did not currently use journalistic cover to engage in espionage, having a defence such as this would almost certainly encourage them to do so. This defence would apply even if the conduct in question was probably against the public interest. This is simply not acceptable; it would give foreign states a back door to commit espionage. Accordingly, the Government cannot accept this amendment and I ask my noble friend not to move it.

However, I want to reassure the media sector that publication of an article that was critical of the UK Government, and which might incidentally be capable of assisting a foreign intelligence service, would not fall within the scope of this offence; nor would the handling of materials in the course of genuine journalistic activities, nor likely the other offences in this Bill. For an offence to be committed under Clause 3, an individual would need to engage in conduct intending

“to materially assist a foreign intelligence service”,

or know, or should have known given the information they had at the time, that it was likely that such conduct would do so.

The Government may profoundly disagree with the conclusions of some journalists, but we will not hide behind the criminal law to suppress genuine competing views and it is almost inconceivable that genuine journalism will be caught within the threshold for criminal activity. My noble friend raised some specific examples and there are many—for example, those relating Snatch Land Rovers a few years ago—but the Government do not consider that the publication of an article that was critical of the UK Government, and which incidentally might be capable of assisting a foreign intelligence service, would fall within the scope of this offence. I think it is worth repeating that.

Many of the examples that have been provided in various articles are stories which relate to terrorism. No journalist has been prosecuted for an offence under terrorism legislation. Even where examples are relevant to state threats activity, no journalist has been prosecuted for an offence under the Official Secrets Act. This Bill will be no different and the Government do not accept the view that it criminalises the activity described in the media.

The test of material assistance is key. To be “material”, the assistance to the foreign intelligence service must be important, considerable or in a significant way. As with all criminal offences, it is the specific circumstances of the case that will be important and will be a matter for the prosecuting authorities, but we would expect prosecutions to involve those with known links to foreign intelligence services, including evidence of a relationship, tasking or payment. Absent these links, the Government struggle to envisage even the most provocative piece of journalism meeting the threshold for the offence.

The noble Lord, Lord Purvis of Tweed, noted the Statement made last week on Iran International, and many noble Lords will have read it; it highlighted the potentially lethal operations of the Islamic Revolutionary Guard Corps taking place in the UK. Far from criminalising the important work of journalists, this offence is intended to protect Iran International, and others who live and work here, from such direct attacks on our people and values.

I turn to amendments tabled by the noble Lord, Lord Marks, with regards to security or defence interests under Clauses 1, 3, 4, 8, 12 and 14. These amendments seek to narrow the definition of “interests of the UK” to ensure a focus on the protection of national security and defence interests, alongside economic security interests. Similar amendments were tabled in Committee, so I will reiterate the concerns the Government continue to have with these changes, as they remain relevant. Narrowing the interest element to cover only security or defence interests significantly moves away from the “safety or interests of the UK” test that already exists and is understood within current espionage legislation. I am afraid these amendments move away from the status quo by creating a test with an unduly narrow focus on national security. While the noble Lord importantly made specific reference to interests pertaining to the UK in its economic security, these amendments continue to not include other critical UK interests relating to public health or, for example, the preservation of our democracy.

The noble Lord, Lord Marks, referred to the case of Chandler v DPP, as did his colleague the noble Lord, Lord Purvis. “Safety or interests of the UK” has been considered by the courts to mean the objects of state policy, determined by the Crown, on the advice of Ministers. We expect this interpretation to carry forward to the new legislation and there are safeguards in place to prevent the Government using this legislation inappropriately—for example, by deciding that somebody is acting against government policy but where there is no national security impact.

Each offence under this legislation includes a test that must be met in order for the offences to be committed. For example, for a person to commit a Clause 1 offence, they must obtain or disclose information that is protected for a purpose

“that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom”

and the activity must be conducted for, on behalf of or with the intention to benefit a foreign power. This limits the type of conduct capable of being caught under this offence, and in particular the foreign power condition ensures that there is a state link. Designing the offence in this way clearly focuses the offence on harmful state threats activity.

I now turn to Amendment 72, tabled by the noble Baroness, Lady Jones of Moulsecoomb, and signed by the noble Lord, Lord Pannick. The most concerning consequence of this amendment is that where a state threats actor, acting under a proxy, has been engaged in harmful activity, which was an offence under the Bill, they would not commit an offence even if it could be shown that they were receiving specific funding in relation to that activity from a foreign power. The House will note the references to “state threats”, “foreign powers” and “national security”. Much as the amorous adventures of Matt Hancock may be of interest, clearly none of those falls in the scope of this offence.

It is no secret that those with hostile intent try to hide their activities through genuine means, and through this amendment there is a real risk that they could operate through proxies in order to make it more difficult to be prosecuted. It is therefore clear to see that narrowing the scope of the foreign power condition will have a damaging impact across the Bill. The Government considers this amendment would create unnecessary loopholes for state actors to exploit.

I would like to remind the House that the Government amended Clause 31(2)(c) in the other place to put it beyond doubt that there needs to be a clear link between the conduct and any assistance or funding from a foreign power for the condition to be met. It is the Government’s view that this puts the focus on the foreign power, ensuring that financial or other assistance from the foreign power is caught only when it is provided to enable the person to carry out the conduct, not when it is just any financial or other assistance.

I would also like to make it clear that Clause 31(2)(d), which concerns activity carried out in collaboration with, or with the agreement of, a foreign power, requires the foreign power to be actively involved in that collaboration or agreement; it does not cover cases where a person’s activities align with state objectives. The Government therefore ask the noble Baroness, Lady Jones, not to press her amendment.

To conclude, as all speakers have noted, the Government have moved a very long way in ensuring that journalistic freedoms are not being unduly encroached in this Bill, so I hope noble Lords will accept our amendments and withdraw or not press theirs.

[Lord Black of Brentwood (Con)]

Before my noble friend sits down, I will offer one point of clarification. I will of course respond to the chair when called to do so after the next group, but I want to say that I am very grateful for the assurances he has given about the scope and intent of the Bill with regard to responsible reporting. My noble friend has made clear that Parliament’s intent in passing the Bill is not to interfere with the free press or investigative journalism and, on that basis, I will be withdrawing my amendment.