National Security Bill

Robert Buckland Excerpts

2nd reading
Monday 6th June 2022 Commons Chamber

[Sir Robert Buckland (South Swindon) (Con)]

It is a pleasure to speak after the right hon. Member for North Durham (Mr Jones), who in admirable brevity covered the gamut of the Bill. The House will be relieved to know that my speech on Second Reading will be even more concise than that. First, I welcome and support the thrust of this Bill, and I echo the comments made by my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) and congratulate him warmly on his knighthood.

I want to develop a further point about what we do not see in this Bill. I know that is warming to a theme we have already heard from a number of contributors to this debate, but it is, I am afraid, one that we cannot get away from. This was an opportunity not just to recast the pre-war legislation from 1911 right through to the late ’30s, but for us to do something to a Bill that, when it became law in 1989, was addressing a world that was already vanishing. That Act came right at the end of the cold war, as the Berlin wall tumbled, and already it was somewhat behind its time. That has become even more apparent with the rise of the internet, the complete transmogrification of how disclosures can now be made and the myriad scenarios that now exist in regard to the unauthorised disclosure of classified material.

It is a matter of regret that the Government have not chosen to pursue reform of the Official Secrets Act 1989 in this Bill. I get the point that this is difficult, and the Home Secretary rightly made that point on a number of occasions in response to Members’ interventions at the beginning of the debate, but frankly, it is the job of this House to do difficult. We are here to do difficult. That is what our voters send us to do, and it is right on Second Reading to talk about what opportunities have potentially been missed.

I know that the scope of this Bill has been carefully crafted by the draftspeople. Knowing them as I do, I respect their work and they will have had—certainly in this case—clear instructions from policymakers. That might mean that I cannot table any amendment that I would seek to table, but I will continue to explore the matter, because it is too important an issue to leave for another occasion. The issue that I wish to deal with is the question of what to do with disclosures that are made in the public interest and in circumstances that clearly support the public interest.

Let me set out what I regard as a two-limbed test for any such defence to apply. Of course, this is not just an idea of mine; it is a carefully crafted set of proposals from the Law Commission that was published back in 2020, when I was still in the Government. I read the recommendations at the time and reread them in preparation for this debate. It is interesting to note that at the beginning of its chapter on the public interest defence, the Law Commission’s provisional conclusion before the publication of its final report was that there should not be a public interest defence but, as a result of the consultation it carried out, it changed its mind and came to the clear view that there was a clear case—a mandate, if you like—for the introduction of such a mechanism.

Currently, we have no mechanism that allows us as legislators or, indeed, us as a country to strike a reasonable balance between the importance of secrecy and the importance of accountability, while ensuring that those such as Julian Assange who dump data in a way that has no regard for the safety of operatives and other affected people are still subject to criminal sanction. In other words, this is not an attempt to try to open the door to create a free-for-all; it is an attempt to allow people to act carefully and in good conscience in a way that clearly serves the public interest.

Currently, in effect we delegate our responsibility as legislators to individual juries. As you know, Madam Deputy Speaker, I have spoken many times of my great belief in the jury system. I have probably addressed more juries than most Members in my work as a criminal barrister, both prosecuting and defending. I have huge faith in the jury system—it is a cornerstone of our liberty, and I mean that with every fibre of my being—but it is just plain wrong, in a society such as ours, for us, dealing as we do with the complexities of modern life, in effect to wash our hands of the process and leave it to individual juries. However carefully directed juries might be and however careful are the arguments put forward by counsel or advocates, it seems to me to be an abrogation of our responsibility.

To those who say that this idea is unprecedented, I say that that just is not the case. Plenty of examples of public interest defences exist in law. Indeed, the Law Commission set out a number of them—for example, section 40 of the Health and Safety at Work etc. Act 1974, and the well-known Criminal Justice Act 1988, which deals with a person who has an item with a blade or a point in a public place. There are legal defences that place the onus in law on the defendant to prove that they were acting lawfully, so we are not asking for something revolutionary. We are not suggesting something that is wholly out of place; this idea is well known to the criminal law and can equally apply to disclosures made by public servants, journalists and people acting in the public interest. It is important to remember that we should not focus on the occupation, profession or rank of the individual—it is not about journalists; it is about material that might have that public interest value. We have to be really precise in our terminology.

[Mary Robinson (Cheadle) (Con)]

My right hon. and learned Friend is making some excellent points—all of which I agree with so far—particularly about the ability for people to come forward and state that they have seen wrongdoing. So often, we rely on people who are inside an organisation, or others, to point out that something is going wrong. I totally agree that we should have a public interest defence. My right hon. and learned Friend will know that the Public Interest Disclosure Act 1998 provides such a defence; should that not be extended to a lot of other areas rather than apply just to those in employment?

[Sir Robert Buckland]

I am grateful to my hon. Friend, who speaks with conviction and passion on this issue. She recently introduced a 10-minute rule Bill on whistleblowing and works very hard on that issue on behalf of many people who have been prejudiced as a result of the current position. She is right to indirectly advert to other legislation. The Public Interest Disclosure Act 1998 again sets out a very reasonable precedent for this House to adopt.

In the place of an arbitrary, case-by-case, unpredictable situation that depends on myriad different facts, we can create a structured defence that sets out very clearly the circumstances in which the public interest can be defined and assessed by a tribunal of fact, including the way in which the disclosure was made, the subject matter of the disclosure, the gravity of the conduct exposed, and the harm caused. All those factors can help to determine what is the public interest. Looking at the manner of the disclosure, we have concepts such as good faith, whether the extent of disclosure was no more than reasonably necessary, whether the individual believes that the material—the documentation—is substantially true, and whether there was a question of personal gain. All these factors can be prayed in aid, and indeed brought into law, to exclude those who equate data dumping with serving the public interest. I do not believe that any Member of this House would condone such reckless and dangerous behaviour.

The hon. and learned Member for Edinburgh South West (Joanna Cherry), who is not in her place, has been right, in her interventions, to remind us that this type of defence is not unique to the Five Eyes. Indeed, Canada, New Zealand and Australia already have a similar type of provision in their domestic law, so this would not be a question of creating prejudice or disadvantage to the United Kingdom in its important role as a member of the Five Eyes.

I have the advantage of having served in Government as a Secretary of State who, among other things, was responsible for warrantry; I can say in all candour that there is probably no more serious task for a Secretary of State to undertake than to assess the evidence before them when deciding whether to issue what can often be quite intrusive orders that have the effect of seriously infringing the normal civil liberties that we, as public citizens, all enjoy. But we do it because we know that there is a wider public interest to be served in making sure that the intelligence services, the police and other agencies that are entitled to make these applications are able to keep us safe. That is something that all of us who have held high office believe in, as do all Members of this House.

Therefore, it is with an element of regret that I say to my hon. Friend—my good friend—the Security Minister, who I know will steward this Bill through with his usual care and concern, that we have missed an opportunity here. If it is not to be in this Bill, then the introduction of a public interest defence must come sooner or later if we are to avoid the randomness of decisions made by jurors who are not legislators and to whom we have, in effect, delegated our authority in a way that does not do this issue any real justice whatsoever.

--- Later in debate ---

[Damian Hinds]

My word, what choice! I will give way to my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland).

[Sir Robert Buckland]

I am extremely grateful to my right hon. Friend. He is right to caution against the danger here, but a carefully calibrated reverse burden defence deals with the mischiefs that he rightly outlines. None of us wants to see Julian Assange and his type carry sway here; we just think that we need to do something before it is done to us. That is the point.

[Damian Hinds]

I hear what my right hon. and learned Friend says, and I fully acknowledge not only his legal expertise overall, but specifically how much thought he has put into this subject and how he has written upon it.

National Security Bill

Robert Buckland Excerpts

Report stage
Wednesday 16th November 2022 Commons Chamber

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. I have miscalculated—this is one of the reasons I was never made a Treasury Minister—and I want to give the Minister an opportunity to respond at the end. Sir Robert Buckland, you can have five minutes, but then we will go to four minutes.

[Sir Robert Buckland (South Swindon) (Con)]

Thank you, Mr Deputy Speaker. I will not be able to emulate the admirable record of my hon. Friend the Member for Broxbourne (Sir Charles Walker), but I will do my best to be as succinct as possible. It is a pleasure to follow the hon. Member for Barnsley Central (Dan Jarvis), who is right when he says that we have to strike a balance here: we need to protect our way of life but not protect ourselves out of the very values that we seek to defend—or, in other words, diminish the very rights that we want to protect. That is at the heart of all the national security legislation that I and others in this House have dealt with over the years. I am grateful to my right hon. Friend the Minister for Security for our conversations about these issues.

I cannot conceal my disappointment at the non-selection of new clause 8, in the name of the right hon. Member for North Durham (Mr Jones), which was signed by me and others. It is inevitable that this issue will be revisited in the other place. There are two issues that arise from it that are of general application to the Bill and to the future reform of the Official Secrets Act, which has to come. The first is the potential creation of a public interest defence, which in my view is an essential substitute to the rather random guessing game that we have at the moment, with jury trials—however well directed the juries might be—ending up with verdicts that, to many of us, seem perverse.

The second relates to the recommendation to create a statutory commission to allow people to raise their concerns—to whistleblow, if you like—through an approved process. The Law Commission’s report of September 2020 made those very clear and cogent recommendations and I commend them strongly to my right hon. Friend the Minister. I think they go hand in hand. The time is here for the Government to start addressing these issues and to adopt those recommendations. To quote my hon. Friend the Member for Broxbourne in another context: if not now, when?

[Mr Kevan Jones]

There are many things in the Bill that I support, but I think it is a missed opportunity. It has been a messy process in Committee, as has been said, as a result of the number of Ministers we have had dealing with it, the late inclusion of things like the foreign agents registration scheme and the completely missed opportunity to reform the Official Secrets Act 1989. The new Minister is very good, but he is a bit like a friendly old bank manager: he listens to you, he agrees with you and he is sympathetic, but you do not get the loan at the end of the day. The point is, however, that this Bill will be changed radically in the other place, because we have not had the proper amount of time to do it.

I want to refer to clause 27, which has been spoken to by the right hon. Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for Barnsley Central (Dan Jarvis). I was on the Intelligence and Security Committee when we were discussing detention and rendition, and some of the things that went on then did not make for pretty reading. We do not want to go back to those days. Things were changed in the consolidated guidance and the principles were brought forward. One of the sops for the Committee—a phrase that everyone kept using—was that there could be a chilling effect on the security services. Everyone kept asking what the chilling effect would be.

A commitment was given to allow the ISC to have classified information on this, and the Chairman of the ISC wanted that before today because it would have given us an opportunity to say whether we were satisfied. Unfortunately, that was turned down, but we have had the initial information and I and other members of the Committee are not yet satisfied that there is justification for this. We have asked for more information, which we are going to receive, but it would have been handy to have it before today. Unless there is good cause, frankly I think it will be interesting to see how this can be justified.

Referring to something that the right hon. and learned Member for South Swindon (Sir Robert Buckland) said, I am disappointed that my new clause 8 was not selected. This is one of those things in the Bill that will come back. The equivalent new clause was selected in Committee only because the hon. Member for North Wiltshire (James Gray) and my hon. Friend the Member for Bethnal Green and Bow (Rushanara Ali) in the Chair agreed to it, so I was not surprised that the Clerks knocked it out of selection, but it will not go away. My fear is that a great opportunity to modernise our national security landscape is being completely missed. I do not think we will see a Bill on public interest or reforming the 1989 Act, but it desperately needs to be done.