National Security Bill

Lord Garnier Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

[Baroness Manningham-Buller (CB)]

My Lords, before we get on to the substance of the Bill, perhaps I might just correct something that the noble Lord, Lord Marks, said that I said in Committee. I did not speak for the protection of the lives of intelligence officers, such as I once was. I was speaking of concern for the lives of human sources who give us intelligence at the risk of their lives and those of their families. That was the concern I highlighted. There was no worry about my own safety; I was talking about those sources.

[Lord Garnier (Con)]

After that intervention, the noble Lord, Lord Marks, had better watch out for his safety.

I begin by thanking the noble Lord, Lord Marks, one of the co-signatories of Amendment 79, for explaining the arguments behind it with such clarity and so dispassionately. I appreciate that he, along with many others, has invested a lot of time and thought in it, and I am somewhat of a latecomer to this particular party.

I have put my name to this amendment, along with those of the noble Lords, Lord Marks and Lord Pannick, not because I think the Government will accept it without question—clearly they will not—but because the question of whether such a defence should be available has long since arrived, and it is certainly possible to say that it is almost too late for us to start debating it now.

The noble Lord, Lord Marks, said that the Labour Party’s stance and its inability to whip its members to support this amendment in the Lobby was a shame. I am afraid that I will be the subject of shamefulness as far as the noble Lord, Lord Marks, is concerned, because I will not push this to a Division, and if others do, I am afraid that I will not join them. However, the reason why I think this debate is important is that, as I said before, it has not been had before, and certainly not in relatively recent memory. That may seem illogical but let me do my best to explain.

I realise that, in matters of national security, no Government, of either of the main parties, and certainly not a coalition Government, will cut and paste an amendment emanating from outside the Government. I can see that the noble Lord, Lord Evans of Weardale, and the noble Baroness, Lady Manningham-Buller, are in their places. I know from my time as a law officer, who had from time to time to consider matters to do with the Official Secrets Act, that the security services, as well as the lawyers who work for them, do not initiate prosecutions under the Act unless there is both a clear public interest in a particular prosecution and sufficient evidence to warrant it. It is my experience and clear recollection that they were all strict adherents to the rule of law in general and the provisions of any relevant statutes in particular, and wanted them applied lawfully and dispassionately in every case. In every case I dealt with I had their support and they had mine in ensuring that things proceeded with propriety and that no shortcuts were taken.

I therefore follow the previous debate on the first group and come to this amendment with a high degree of realism and more than academic or theoretical interest, albeit in a spirit of inquiry, to see where the Government’s thinking is on the matter. Clearly, anything that looks as though it may make the lives of those who want to damage our national interests less difficult, or make prosecutions in the right cases more difficult, must be considered with care, and will, at least initially, be likely to alarm those charged with the day-to-day care of our security. However, I hope that the arguments in favour of this amendment have been heard and that, once they have been digested, the Government will take some time to respond as fully and as openly as they can. My purpose today is to provoke that discussion, not to embarrass the Government. Nor is this group of amendments an opportunity to debate Clause 31 and the foreign power conditions, although Clause 31(3) and (6) clearly need careful attention. As I said at the outset, my intention is to raise the public interest issue firmly in Parliament.

--- Later in debate ---

[Lord West of Spithead (Lab)]

Perhaps I might intervene. Ships alter course and go in all sorts of directions. There is a general trend, of course, and the general trend of the “Belgrano” and her group was towards a sudden pincer that would have attacked our force. That was why she was sunk—quite correctly. It was the right decision. In the context of this amendment, I would not want that to be confused.

[Lord Garnier (Con)]

I would not describe the noble Lord as a young man in a hurry although, had he waited just a second or two, he would have discovered that he and I might be in closer agreement than he might otherwise have imagined. But there we are. Let us ignore for the moment the direction in which the ship was going, understand that it was sunk and understand that Ponting disclosed that it was going in a particular direction when the Government had announced it was going in another. That is the end of that little anecdote. I am grateful to the noble Lord for his intervention. In my view, the short point is that it was an enemy ship that was generally threatening our ships. We were at war with Argentina. Argentinian warships were at risk of being sunk if they came within range of British Armed Forces. I do not have any particular sympathy for the Argentinian ship—albeit of course that it led to the most appalling loss of life for many Argentinian sailors.

However, it is not satisfactory for juries faced with a case where they think that a conviction on the evidence before them is unjust to be forced to bring in a perverse verdict in breach of the judge’s clear direction on the law and how it applied to the facts of the case. I suggest that this amendment is conservative with a small “c” and not a traitor’s “get out of jail free” card. The burden of proof is on the defendant to demonstrate that the disclosure was in the public interest and that the factors set out in proposed new subsection (3) are met. It would not allow for someone to disclose national security information because they thought that their view of the world was more attractive than that of the Government or the security services, or out of greed; nor would it allow for a Snowden or a Wikileaks scenario where vast swathes of information were dumped into the public domain.

If, for example, there was a better way of dealing with the sensitive information—noble Lords should look at proposed new subsection (3)(f)—the defendant would be hard pushed to persuade the jury that public disclosure was in the public interest. In my view, the proposed amendment accepts reality and prevents juries bringing in perverse verdicts in order to achieve informal or dishonest justice. A law that is not respected or is avoided by perversity, perhaps following some intellectually dishonest advocacy, is not worth having. In an era of electronic media, when information gets out pretty much immediately across the world in vast quantities, it may be better to inhibit desperados and attention seekers by getting them to think about what they will need to prove to found their public interest defence.

It seems to me that we can either carry on pretending that perverse verdicts do not happen—and swiftly change the subject when they do—or face up to reality and legislate sensibly for a really very unradical public interest defence that will neither bring down the state nor damage respect for the rule of law.

[Lord West of Spithead (Lab)]

My Lords, although I sympathise with Amendment 79, which seeks to protect those who act genuinely in the public interest, I do not support it, for a number of reasons.

First, although I accept that, in its comprehensive 2020 review relating to the protection of official data, the Law Commission recommended that a public interest defence be introduced, that was in relation only to the Official Secrets Act 1989. Its recommendation did not suggest that such a defence should be incorporated into the rest of the Official Secrets Act regime, which is what in effect this Bill seeks to replace.

Secondly, in any event, the risks of introducing such a defence need to be carefully considered and balanced against the benefits of potential alternative approaches. This includes the creation of an independent commissioner to receive and investigate complaints of serious wrongdoing, which the Law Commission also recommended.

Thirdly, any introduction of a public interest defence needs to form part of a wholesale reform of the Official Secrets Act 1989, which this Bill does not seek to do. As I said at Second Reading, the ISC was disappointed to see that the Government were not reforming that Act. I will not repeat what I said then, other than to say that it is a very significant missed opportunity. That is particularly so because the Government have accepted the need to change the OSA for years, and this Bill represented a clear legislative route to do it.

Lastly, this amendment is very broadly drafted. It would introduce a public interest defence into a range of offences that do not require one, such as the offence of assisting a foreign intelligence service. For those reasons, I cannot support it.