National Security Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

72: Clause 31, page 23, line 3, leave out paragraph (c)
Member’s explanatory statement
This amendment is recommended by the JCHR and would narrow the definition of foreign power threat activity to remove giving support and assistance (including support and assistance unrelated to espionage activity) to a person known or believed to be involved in offences under the Bill (but would retain conduct which facilitates or is intended to facilitate such offending).

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

My Lords, in the absence of my noble friend Lady Ludford, I am moving Amendment 72. It is a short amendment and I shall speak briefly. Clause 31 deals with foreign power threat activity, which is relevant to a constable’s powers of arrest without warrant and detention powers under Clause 35. Indeed, such activity acts as a threshold for the exercise of those powers. Foreign power threat activity also acts as a threshold for the powers of search, disclosure orders, customer information orders and account monitoring orders by virtue of Clauses 21(b), 22 to 24 and Schedules 2 to 5 incorporated in the Bill by those clauses.

Foreign power threat activity is defined in paragraphs (a), (b) and (c) of Clause 31(1). I am afraid I have to read them:

“In this Part references to foreign power threat activity and to involvement in foreign power threat activity are to one or more of the following … (a) the commission, preparation or instigation of acts or threats within subsection (3)”—


that is, the major offences under the first part of this Bill—

“(b) conduct which facilitates (or is intended to facilitate) conduct falling within paragraph (a)”,

which I have just read. Finally, our amendment is directed to paragraph (c), which we say should be removed from Bill and which refers to

“conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraph (a).”

The reasons paragraph (c) should be removed are twofold. First, it makes no sense. Secondly, even if it did, the conduct described is far too vague and remote from the acts concerned in the offences described to make any sense at all or to make it worth retaining.

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[Lord Sharpe of Epsom (Con)]

I base that confidence on the explicit reference to Clause 31(1)(a) in Clause 31(1)(c). With that, I ask the noble Lord to withdraw the amendment.

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

I will withdraw it, but only on the basis that the Minister will consider this a little more carefully. As I have said, at the moment the clause seems to me unsatisfactory, and paragraph (c) ought to go. That would not damage the overall meaning of the clause at all, and I hope that the Minister will reconsider that before Report. With that, I beg leave to withdraw the amendment.

Amendment 72 withdrawn.

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Moved by

[Lord Marks of Henley-on-Thames]

74: Clause 36, page 26, line 5, leave out “in the interests of national security” and insert “for the administration of justice, having regard to the risk to national security”
Member's explanatory statement
This amendment is based on a recommendation from the JCHR. It ensures this Clause better complies with the right to a fair trial and the administration of justice.

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

My Lords, I move Amendment 74 on behalf of my noble friend Lady Ludford. It is a very simple amendment which relates to Clause 36 and the power to exclude the public from proceedings. At the moment, the clause reads:

“If it is necessary in the interests of national security, a court may exclude the public from … any part of proceedings … under this Part, or … any part of proceedings relating to section 69A of the Sentencing Act 2020”,


which relates to the aggravating factors in sentencing so that we are concerned only with criminal proceedings under the Bill. The JCHR has recommended that the interests of justice take primacy over the interests of national security by substituting

“in the interests of national security”

with

“for the administration of justice, having regard to the risk to national security”.

The justification for that is that, when one is considering the exclusion of the public—which the JCHR has recognised as being of great importance—the interests of justice should take primacy. Of course, if the interests of national security are in conflict with what might normally be seen as the interests of justice, it is likely that the interests of justice will be served by giving way to the interests of national security. However, it is entirely wrong that the interests of national security should be the only interests mentioned in Clause 36, and this was the view taken by the JCHR—that the interests of justice should be mentioned first.

May I say a word or two about the Government’s approach to the recommendations of the Joint Committee on Human Rights? We sometimes feel on this side of the House—and I suspect in a great many quarters—that the recommendations of this objective, well-informed and impartial committee, which is appointed to consider the compliance of proposed legislation with human rights law and principles of human rights, is given far too little shrift by government. We would be very pleased to see a change in that approach, so that recommendations which are very carefully drawn up and researched, and usually in very modest terms, are properly respected. There is a fear that they are routinely disrespected on the basis that the Joint Committee is seen as an arm of the so-called human rights lobby, and treated with something like the Rice-Davies approach of, “Well, they would say that, wouldn’t they?”

That is frankly inappropriate. It is a criticism that is being felt more and more strongly and one that is surprising in light of the fact that many on the Government’s side of this House and the other place are broadly opposed to the continuation of our adherence to all the points of the European Convention on Human Rights. They justify that opposition by reference to the view that the common law and Parliament will always be there to defend human rights, but if the Joint Committee’s recommendations are given such short shrift, there can be little confidence in that assurance.

I accept that that is a digression, but it is an important digression, because my noble friend Lady Ludford’s amendments are directed to the recommendations of the Joint Committee on Human Rights and it is something I hope Ministers will bear in mind. I beg to move.

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[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

I thank the noble Lords, Lord Marks and Lord Ponsonby, for their remarks. Turning first to the subsidiary point in respect of the importance of the reports of the JCHR, I can certainly assure all in the House that the JCHR reports are taken very seriously by the Government and all the recommendations are appropriately considered. I can say that, as a human rights lawyer myself, I fully appreciate the importance of the human rights considerations and the very valuable work done by the committee. I hope my remarks go some way to assuage the concerns that were outlined.

I turn now to the substantive amendment tabled by the noble Baroness, Lady Ludford. This clause replaces Section 8(4) of the Official Secrets Act 1920 and in so doing makes it more explicit that the exclusion of the public from proceedings must be necessary in the interests of national security. The Government consider that the approach taken in the drafting is appropriate given the highly sensitive nature of the material that may be required to be considered during court proceedings in relation to offences under the Bill. It is important to note that the decision to exclude the public from proceedings is taken by the court on application by the Executive, who are well placed to set out the risk to the courts. We consider that the judiciary is already well placed to assess the impact of any such decision on the administration of justice.

The words that this amendment seeks to add are, with respect, unnecessary. In England and Wales, for example, the Criminal Procedure Rules 2020 would apply in such proceedings which already have as their overriding objective that criminal cases are dealt with justly. Therefore, those rules require a court to have regard to the importance of dealing with criminal cases in public and the overriding interests of the administration of justice when determining whether to exclude the public from any part of proceedings. It is clearly right that this clause notes and provides the court with a clear basis upon which to exclude the public on grounds of national security, and that is all that this clause does. For those reasons, the Government cannot therefore accept the proposed amendment and I therefore invite the noble Lord to withdraw it.

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

My Lords, I shall look carefully at the Minister’s response. For the time being I will certainly seek leave to withdraw the amendment. There may be room for further discussion—there may not. I accept that the overriding objective applies to criminal cases and to dealing with cases justly, but as regards whether it is not sensible that that should take primacy by a special mention in the Bill I am unconvinced at the moment. However, I will read what the noble Lord had to say. I therefore beg leave to withdraw the amendment.

Amendment 74 withdrawn.

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Moved by

[Lord Marks of Henley-on-Thames]

75: After Clause 36, insert the following new Clause—
“Public interest defence(1) A person subject to proceedings for any offence under sections 1 to 5 of this Act may raise as a defence that the person reasonably believed the conduct alleged to constitute the offence was carried out in the public interest.(2) Where a defence under subsection (1) is raised, it is for the prosecution to prove beyond reasonable doubt that the conduct alleged was not in the public interest.(3) In determining whether such conduct was in the public interest the court must have regard to—(a) the nature of the alleged conduct;(b) the harm caused by the alleged conduct;(c) whether the manner in which the person engaged in the alleged conduct was in the public interest;(d) whether the person engaged in the alleged conduct in good faith;(e) whether the person engaged in the alleged conduct for personal gain;(f) the availability of any other effective authorised procedures for achieving the purpose of the alleged conduct and whether those procedures were exercised;(g) any other relevant feature of the alleged conduct.”Member's explanatory statement
This amendment provides for a public interest defence to the offences under Clauses 1 to 5 of the Bill.

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

My Lords, I thank the Committee for its indulgence in allowing a 10-minute break. The technical issue involved was entirely mine. I am tempted to say that there was a reasonable defence. It may not have been a public interest defence and I certainly cannot describe it as lawful justification, but nevertheless—

[Lord Coaker (Lab)]

A serious disruption?

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

Yes, it was possibly a serious disruption.

We have all received a very large number of briefings calling for a public interest defence, and none of them has suggested that such a defence is a bad idea or that it would imperil national security. I record our thanks to all the organisations which have sent us these briefings, including the BBC, the NUJ, Index on Censorship, openDemocracy, Guardian News & Media Limited and Mishcon de Reya, among many others. The briefings have concentrated largely on the threat to investigative journalism posed by the criminal provisions in the Bill. We dwelled on these at Second Reading, in the first two days in Committee and, to some extent, earlier today, so I will not go into detail. Suffice it to say that the threat to investigative journalism of criminalisation and the accompanying very long sentences is real and chilling—chilling in that the threat will have a deterrent effect on investigative journalism and in that it represents a real and frightening, and not merely theoretical, threat to open democracy.

It seems to be generally agreed that these provisions risk breaching Article 10 of the ECHR, on freedom of expression, a concern that was expressed by the Joint Committee on Human Rights in its report on the Bill. The committee said, at paragraph 172:

“There seems to be a certain level of consensus that a whistleblowing or public interest defence is needed”.


It is also significant that a number of other countries, including our Five Eyes partners Canada, Australia and New Zealand, have some form of public interest defence to charges under similar legislation. However, it is not exclusively investigative journalism or even campaigning that is under threat. Those who expose wrongdoing by public servants or whistleblowing employees are equally at risk and may be equally deserving of an acquittal for an offence under this Bill after deploying a public interest defence.

It is for that reason that the public interest defence in our Amendment 75, in my name and that of my noble friend Lord Purvis of Tweed, goes further than protecting journalists alone. In so doing, it is close to the Law Commission’s recommendation in its 2000 paper, Protection of Official Data, which recommended that there should be a statutory public interest defence to unauthorised disclosure offences which should be available to anyone, civilians as well as journalists.

Therefore, our amendment would apply to all prosecutions for offences under Clauses 1 to 5 of the Bill, not just unauthorised disclosure offences, with which the Law Commission was concerned, but we regard that as right. Disclosure of restricted material is just as capable of being in the public interest as it is of assisting a friendly country’s intelligence service to apprehend or expose wrongdoing, as is entering a prohibited place to photograph or record corrupt transactions involving public servants. All can give rise to prosecution under the Act, and in each case there ought to be a public interest defence.

The defence we advocate is based on reasonable belief, so it relies on a test that is, in part, subjective—“Did the defendant believe their conduct was in the public interest?”—and, in part, objective: “Was that belief reasonable?” Juries are well used to applying that type of test and I suggest it is the appropriate one. By contrast, a wholly objective test of whether or not conduct was in fact in the public interest would impose a burden on juries to make what is essentially a political judgment, no doubt on the basis of conflicting evidence, expert and factual. That would not be the best test of the criminality of a defendant.

We have also maintained the principle that, once the defence is raised, it is for the prosecution to rebut it to the criminal standard of proof. That is the way our criminal law responds to a number of defences, reasonable self-defence being one such. We suggest it is the appropriate response. It would perhaps be different if we were concerned here with unauthorised disclosure by a member of the security or defence services who was bound by an agreed and binding confidentiality requirement. However, we are legislating here for criminal charges against private citizens, who, I suggest, are entitled to the benefits of the usual protections inherent in our criminal law.

In applying the test we advocate, juries would have to consider a number of factors set out in proposed new subsection (3) of the amendment. In formulating them, we have relied loosely, but not exclusively, on the factors mentioned in the Public Interest Disclosure Act 1998, which amended the Employment Rights Act 1996 for the protection of whistleblowers. These factors are designed to steer juries towards a balance between confidentiality and the public interest in disclosure. But we do not argue that these are in final form; at this stage, they are designed to give shape to what we would like to see in a public interest defence.

I repeat what I said the other day in Committee: there is no genuine democratic protection in the requirement that the Attorney-General’s consent should be obtained for a prosecution to be brought. That is a welcome safeguard, but its point is to avoid unnecessary and unmeritorious prosecutions. What is needed for the determination of guilt or innocence on a public interest defence is a trial before a jury, where the defendant has a fair chance to put their case that they reasonably believe that the conduct of which they are accused and which is said to be criminal was in the public interest.

I am grateful to the noble Lord, Lord Coaker, for his amendment but, unlike him though it may be, we say it goes nothing like far enough. We need a defence when the Bill becomes law, not merely an assessment of its possible merits. I note that, in the other place, the amendment of Kevan Jones MP, the Labour Member for Durham and a member of the Intelligence and Security Committee, was nothing like as diffident as that proposed by the noble Lord, Lord Coaker. I also note that Tom Tugendhat, for the Government, promised to engage further with the Opposition on this issue. I sincerely hope that the Minister gives a similar promise to consider the public interest defence, not just because of what we say here but because of the wide interest and concern about the importance of this expressed across the nation. The incorporation of the public interest defence in the Bill would address many of the concerns that these Benches and others have expressed about the dangers to personal liberty in this legislation. I therefore beg to move.

[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.

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[Lord Murray of Blidworth (Con)]

It is clear, in the view of the Government, that those issues relate to the provisions found in the 1989 Act, which are not addressed in the Bill. While I note that evidence, it is not relevant to this amendment. As I have already said, I therefore invite the noble Lord to withdraw his amendment.

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

My Lords, I will be asking for leave to withdraw this amendment, not on the basis that it will go away but on the basis that, first, there is room for further discussion, even though only a chink has opened up in what the noble Lord, Lord Murray, has had to say; and, secondly, on the basis that I accept that the amendment is not perfectly drafted and we would like to take further advice and further consider a number of matters in the drafting of the Bill. What I will say, very briefly if I can, about the amendment and the response of the Minister and the other speeches we have heard, is that this question has to be taken in the context of the introduction of the Bill.

There can be no doubt that the Bill will manifestly broaden the ambit of national security and protection legislation: first, because it is targeted not at individuals who have an obligation to the state but generally at citizens; and, secondly, in the way that the Bill is drafted. We talked about this a great deal last week, when we noted the inclusion of expressions such as, “know or reasonably ought to have known”, “conduct that it is reasonably possible may materially assist a foreign intelligence service” and all those peripheral expressions. Indeed, we note the use of the phrase “prejudicial to the interests of the United Kingdom” when we know “the interests of the United Kingdom” are determined by what the Government of the day believe those interests to be. All those broaden the ambit of these criminal offences.

I completely agree with the noble Lord, Lord Coaker, that this issue is not going to go away. All the briefings we have had from journalists and organisations tell us how important a public interest defence is. I completely take on board the point made by the noble Baroness, Lady Manningham-Buller, repeated by the noble Lord, Lord Faulks, and by the Minister, that Article 10 on freedom of expression is a qualified right. Of course, people of legal distinction can disagree, but it is entirely wrong to suggest that the Law Commission does not contain people of legal distinction.

If it were translated into a consideration of this Bill, because there is no material distinction on the disclosure points, I feel confident that the Law Commission would come out with the same recommendation as it did in 2020. We also have the recommendation of the Joint Committee on Human Rights in relation to a public interest defence. It is very difficult to argue that the fact that it is a qualified right under Article 10 does not mean that it would apply. Of course, we, the Law Commission and the Joint Committee on Human Rights have read the whole of Article 10 and understand the qualification, but the overwhelming point is the phrase

“necessary in a democratic society”.

Everything else is subject to that in the qualification.

[Lord Faulks (Non-Afl)]

Just so that I understand, is the noble Lord saying that the absence of a public interest defence, whether framed in the manner of this amendment or in a similar or a different way, means that the Bill would automatically be a violation of Article 10 of the European convention?

[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.

[Lord Faulks (Non-Afl)]

First, with great respect, jury trial was effectively abolished by the Act that the noble Lord is talking about. Secondly, it put into statutory form a so-called Reynolds defence in a civil claim. Here we are talking about prosecutions of criminal offences of the most serious sort. The analogy is not appropriate.

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

I disagree—a fortiori, if such a defence is appropriate in a defence to a civil claim, it is appropriate in a defence to criminal proceedings that carry maxima of 14 years and life imprisonment. We may differ on that; nevertheless, of course I note that jury trial was abolished for defamation by that legislation. However, when we were considering the public interest defence, the abolition of jury trial was not then in mind; we had always had jury trials, and still can do in rare cases.

The only other point I wish to make is in answer to the noble Baroness, Lady Manningham-Buller. Of course, in the case of whistleblowers, there are other avenues to pursue for those employed by the security services, but there are two answers to that point. The first is that we are not just concerned with those employed by the security services, or those employed by anybody in particular. We are concerned with offences designed to be used and prosecuted against ordinary citizens. Secondly, we have included in our amendment—it is one of the best drafted parts—that one of the factors to be taken into account would be

“the availability of any other effective authorised procedures for achieving the purpose of the alleged conduct and whether those procedures were exercised”.

That will always be an important point, because it answers the point that you could have gone to an authorised body for the protection of whistleblowers.

This issue is not going to go away. I suspect we shall come back to it on Report, and that there will be a vote on it. The amendment may be in a very different form, but nevertheless, with these very serious criminal offences, I cannot accept that a public interest defence is not in the interests of the public and the nation. I beg leave to withdraw the amendment.

Amendment 75 withdrawn.