Amendment 1

National Security Bill - Report (1st Day) – in the House of Lords at 3:52 pm on 1 March 2023.

Alert me about debates like this

Lord Sharpe of Epsom:

Moved by Lord Sharpe of Epsom

1: Clause 1, page 1, line 9, after “or” insert “having regard to other matters known to them”Member's explanatory statementThis amendment clarifies the meaning of “ought reasonably to know”.

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department

My Lords, before I speak to the amendments in this group, I would like to talk about some of the reasons why we are introducing them. Some of our amendments have been brought forward to reassure noble Lords and others that the offence will not capture the genuine work of journalists. We have listened to the concerns raised by the media sector and noble Lords in the House, and some of these amendments are a direct response to them.

The Government have heard from media stakeholders who believe that they could no longer hold the Government to account and that these clauses could inhibit the publication of articles critical of the UK’s defence or security response. I want to address those concerns directly. The Government are committed to defending our freedoms—values which define us and make us who we are. Few are more fundamental to that than freedom of the press. There is no intention to stifle or censor the media’s ability to expose or shine a light on issues. That is the proper role and function of the media and why the UK is such a strong advocate of media freedom globally.

Before we get into the details of individual provisions, I remind the House that these provisions replace the existing law in the Official Secrets Act 1911. We have been provided with a number of examples of journalistic reporting that have been cited as part of the case that more must be done to protect journalists in this Bill. Even were the Government to accept that any of these examples could hypothetically be caught by any of the offences, the same would be true of the existing laws. Accordingly, great comfort should be taken from the fact that no prosecutions of journalists have taken place under the espionage laws to date. I want to confirm again, on the record, that the focus of the Bill is on protecting the UK from threats from foreign states and those acting against UK interests, not interfering with the free press.

I begin with the amendments focusing on “ought reasonably to know”. The phrase was said to be unclear, with concerns raised that it could be interpreted as imputed knowledge, thereby catching those who engaged in specified conduct unwittingly—who did not know but are told that they should have known. I would like to strongly emphasise that this is not the Government’s intention and we do not consider that the current formulation would be interpreted by the courts in this way. However, we have considered the concerns raised on this issue, particularly the useful contributions in Committee from the noble and learned Lord, Lord Hope, and the noble Lord, Lord Marks. We agree that it would be helpful to clarify the meaning. These amendments therefore clarify that the prosecution must look at what matters were known to the individual at the time in determining whether that individual ought reasonably to have known something.

I now turn to amendments which all relate to the offence of materially assisting a foreign intelligence service. The amendments that the Government have put forward update the offence provided for in Clause 3(2). These amendments are similar to the ones put forward in Committee by the noble Lord, Lord Marks. The effect of these amendments is that the wording

“it is reasonably possible may” in both Clauses 3(2)(a) and (b) would be replaced with “is likely to”, which in this context we see as meaning a real possibility. In order to ensure consistency across the clause, Amendment 13 also updates the relevant wording in Clause 3(3).

The Government have tabled amendments in response to a point raised in Committee by the noble Lord, Lord Pannick. These would add protections for lawyers, ensuring that any genuine legal activity will not be captured under the Clause 3 offence in the Bill. I beg to move.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, I thank the Minister for the helpful explanation of the many government amendments in this group. I thank him and the Government also for the considerable movement they have made in response to criticisms made by me and many others at Second Reading and in Committee of the breadth of the offences under Part 1. We are very grateful to the Government for the comprehensive way in which they have listened to our criticisms and moved towards positions that we have taken.

In particular, the troublesome phrase “ought reasonably to know” has been clarified by the qualification that what a defendant ought reasonably to have known falls to be judged having regard to other facts known to that defendant. Furthermore, in Clause 3, as the Minister explained,

“conduct that it is reasonably possible may materially assist a foreign intelligence service” becomes conduct that “is likely to” materially assist a foreign intelligence service.

I welcome the new strengthened review provisions introduced by the new clause proposed in Amendment 85, in place of the old Clause 56. These and other concessions in the amendments moved by the Government allay many of our concerns.

However, there is one area left untouched that we say is still completely wrong: the failure to tighten up the definition of the

“interests of the United Kingdom”.

That is the subject of our Amendments 2 and 3, and the corresponding amendments wherever the phrase

“safety or interests of the United Kingdom” appears. I note the word “or”: the interests of the United Kingdom alone are enough to qualify. It is principally in support of those amendments that I speak now.

We are concerned about the interests of journalists, and that is the title of this group. I do not accept what the Minister said when he suggested that it was permissible to rely on the fact that journalists have not in the past been prosecuted under security legislation. That may as a matter of fact be true, but it is neither safe nor good legislative practice to rely on it without tightening up the legislation so as to prevent such prosecutions succeeding.

As I pointed out in Committee, the interests of the United Kingdom are effectively synonymous with the interests of the Government of the day—not in a party-political sense, granted, but in the sense of how the Government perceive the national interest. As the Minister and others pointed out in Committee, that derives from the well-known case of Chandler v the Director of Public Prosecutions in 1964, which defined the phrase as meaning

“the objects of state policy determined by the Crown on the advice of Ministers”, and it is a commonplace to suggest that the perception of the interests of the state differ between Ministers, between Governments and between political parties.

We argue that it is not the purpose of a national security Bill simply to protect the general policy objectives of the Government of the day. The proper function of a Bill about national security is the protection of the security and defence interests of the United Kingdom. It was pointed out by some, in response to our amendments in Committee, that security needs to encompass economic security, and I accept that. Therefore, we have added to our amendments in Committee, which merely used the words “security” or “defence interests” to qualify them in every case, making it clear that the security or defence interests of the United Kingdom may include the interests of the United Kingdom in its economic security.

However, without a narrower definition of the interests of the UK, the Bill contains a worrying restriction on investigative journalism and campaigning where conduct that could be taken to breach Clauses 1 to 5 might be contrary to government policy, and such policy might, as the Bill is drawn, have nothing to do with security but could embrace, for example, environmental protection, energy policy, safety standards, food standards, water quality, international competition in trade, immigration—the list could be endless. As the Bill is structured at the moment, disclosing any restricted information which came into a journalist’s or campaigner’s hands for a purpose that is contrary to government policy in any policy area could constitute an offence under Clause 1, provided that the foreign power condition were met. The problem is worse because, under the Bill as drawn, any friendly Government are to qualify as a foreign power, with the sole exception of Ireland. We believe that these offences should be restricted to cases where national security, to include economic security or the defence interests of the United Kingdom, is threatened.

That is the case for our amendments. I turn briefly to the other amendments in this group. Amendment 18 is in the name of the noble Lord, Lord Black of Brentwood. It relates to the Clause 3(2) offence of assisting a foreign intelligence service and would establish a defence where the conduct was

“with a view to publication of material by a recognised news publisher.”

We would support that amendment but, as we will explain on the next group dealing with the public interest defence, we believe it does not go far enough.

Amendment 72, in the name of the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Pannick, would amend the foreign power condition to limit its application to conduct carried out for purposes of journalism to those cases where the conduct in question was instigated by or under the direction and control of a foreign power. We would support that amendment also.

Amendment 79B, in the name of the noble Lord, Lord Coaker, calls for a report on the impact of offences under Clauses 1 to 5 and the Official Secrets Act 1989, as amended under Schedule 17 to the Bill, on the operation of NGOs and journalists. We would welcome such a report, but I do stress that it does nothing to cure the remaining problems that are inherent in the Bill as it stands.

Photo of Lord Black of Brentwood Lord Black of Brentwood Conservative 4:00, 1 March 2023

My Lords, I will speak to Amendment 18 in my name, supported by the noble Baroness, Lady Stowell, the noble Lords, Lord Stevenson and Lord Faulks, and to a number of government amendments that touch on the same issue. I declare my interest as deputy chairman of the Telegraph Media Group, which is a member of the News Media Association, and as director of the Regulatory Funding Company. I also note my other interests in the register.

One of the leitmotifs that ran through discussions on this Bill in the other place, and through Second Reading and Committee here, has been its impact on independent journalism, particularly investigative reporting, as the noble Lord has just said. I do not need to rehearse all those arguments on this subject, which have been well covered and widely reported. Indeed, it has attracted attention and criticism from international media freedom groups deeply concerned about the global impact of this legislation.

The crux of the argument is really very simple and arises mainly from the wide definitions of offences in Clause 3, which potentially criminalise aspects of investigative reporting. That in turn—this is the major worry—produces a powerful chilling effect on investigative reporting by responsible journalists. I appreciate that there are government amendments, which I am going to come to, but as it stands an offence punishable with heavy criminal sanctions and sentences is committed if someone

“knows, or ought reasonably to know, that it is reasonably possible their conduct may materially assist a foreign intelligence service”.

That would cover a wide range of reporting, whether about sexual assaults on board a nuclear submarine, Chinese influence in the UK, bullying by intelligence officers, an innocent photograph of a nuclear power station or huge investigations such as the Panama Papers.

The problem is that, when journalists start investigating a story, they cannot possibly know where it will lead and whether their reports might

“materially assist a foreign intelligence service”.

They should not be criminalised for what they ought to have known, even if what they actually did know at the time is taken into account. It is too nebulous and such a low bar that much reporting could be caught. Editors and reporters would far too often be forced to stop an important public interest investigation because of the fear of breaking the law and individuals facing prison sentences.

As I said in Committee, I have never believed that the new offences in this Bill would be used regularly to imprison journalists, and I do not believe that is what the Government intend. But the risk, the uncertainty, the lack of clarity in the law and the chilling effect are there. As a result, the damage to the public interest is there.

To echo the noble Lord, Lord Marks, the Government to their great credit have listened to concerns set out so clearly in Committee by colleagues across the House in the debate on the amendment tabled by the noble Baroness, Lady Jones, and others. The Security Minster Tom Tugendhat has underlined his own strong personal commitment to media freedom. He, my noble friend the Minister and their officials have been extremely helpful and constructive in discussions with colleagues here and with the media industry to try to resolve these issues.

Government amendments tabled for Report to Clause 31 are an improvement on the Bill and I support them. They go some way to ameliorating the difficulties by changing “reasonably possible may” to “is likely to”, which brings helpful clarity. But I believe that, without a very clear signal from the Government that the purpose of their amendments is to ensure that public interest journalism is outside the scope of their Bill, on their own, they do not go far enough.

The reason for this is that lack of clarity in the criminal law is always the enemy of investigative reporting. Uncertainty as to whether something will end up in a lengthy jail sentence for a reporter of editor is anathema to media freedom. Here we have—even with the government amendments—lack of clarity and uncertainty, and a chilling effect from the wording that judges journalists for what they ought to have known.

Relying on the courts to interpret vague legislation is not good enough when it comes to media freedom, because we have all seen where that ends. There must be no ambiguity which would force the prosecuting authorities and courts to have to second guess the intentions of Government or which would allow a future Government not committed to freedom of expression to use the same prosecuting authorities and courts to suppress scrutiny of their actions.

Consider this not unusual scenario. It happens not infrequently that an investigation by a newspaper relating to a matter of national security looks as if it may end up criticising or embarrassing the Government or intelligence services. During the course of such a wholly legitimate investigation in the public interest, the editor of a newspaper receives a call from someone who says, “Publish this and you’ll be assisting a foreign intelligence service”. The editor and reporter have no way of knowing whether that is true or is just an attempt to stop an investigation. In such circumstances, the risk of prosecution because they “ought reasonably” to have known that they were assisting a hostile power will deter them from publication. Simply put, if you do not know what constitutes “conduct” amounting to a criminal offence, you are unlikely to pursue a story touching on national security issues. Even with the government amendments, that still therefore leaves a profound chilling effect.

I understand that the Home Office and the security services need “conduct” to be drawn sufficiently broadly in Clause 3 to protect the public in a wide range of circumstances—something we all want—but that is why, at the same time, it must be made unequivocally clear that genuine journalistic activity is not within the ambit of prosecution.

The purpose of my amendment is therefore to provide clarity and certainty by ensuring that those working on articles or investigations for publication by recognised news publishers—a term already defined by government in both this Bill and the Online Safety Bill—have a defence to rely on if they are threatened with prosecution for conduct that they must necessarily engage in during the course of their work. This simply codifies in the Bill the Government’s stated intention in regard to journalism, and is a straightforward, practical amendment to deal with the problems that have been identified throughout the passage of this legislation.

I have consistently said that I wholeheartedly support this Bill. National security is the primary task of government and one which this House takes incredibly seriously. However, all legislation of this sort is a balance between competing rights and responsibilities. Noble Lords will know that, 80 years ago, President Roosevelt set out his four freedoms. The fourth was freedom from fear, which is what this Bill is all about. We should not be fearful of the terrorist, the bullet or the bomb, or of a cyberattack, and this Bill rightly strengthens the armoury available to the state to deliver that. However, Roosevelt’s first freedom was freedom of expression—the source of all other liberty. He recognised, as so many after him, that a balance needs to be struck. This amendment seeks to do that by ensuring that this vital Bill protects the public interest that springs from investigative reporting at the same time as it protects the security of the public. In doing so, it would send a powerful signal to the rest of the world about the commitment of our Parliament to free speech—a global responsibility that we must take very seriously.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, it is a pleasure to follow the noble Lord, Lord Black. I read up on him and it says online that he is a passionate defender of press and media freedom, and free speech. I think we might be coming at these things from different directions, but on these things we agree. I declare an interest as the mother of a journalist. I care very deeply about this issue of press freedom; it is a ditch I will die in—which looks likely, perhaps, today.

The Minister said he has heard from the media. I have heard from the media as well, and it has been quite interesting hearing what journalists have to say about this particular Bill. For example, only today, the Sun journalist Mr Harry Cole texted me to highlight stories that he broke that could have criminalised him. That is quite a useful example. One of the stories was, of course, Matt Hancock in his office with his then girlfriend—perhaps not a matter of great state concern, but at the same time it showed a carelessness on behalf on members of the Government for laws that they had brought in.

The government amendments in this group are proof that your Lordships’ House can force the Government to recognise errors in their legislation—of which, of course, there are always a lot. As I said at Second Reading and in Committee, the offences in the Bill are simply too broadly drawn; they risk ensnaring far too many innocent actions, turning them into serious criminal offences. I am glad the Government have now conceded that point, including a recognition that current drafting risks harming journalists alongside numerous other legitimate actors, such as charities and non-governmental organisations.

However, while the Government’s proposed amendments will tighten the offence, they still do not sufficiently protect innocent people from falling foul of these laws. That is why I have tabled Amendment 72, which would protect journalists unless they did something on the orders of a foreign power. This strikes a much better balance. It does not grant a total exemption, which would allow actual spies to claim they were journalists, just as it would not allow the Government to brand actual journalists as spies.

I like Amendment 18. It is not as good as my Amendment 72, but it has slightly more elegance. I strongly support it and hope that the noble Lord will press it to a vote. I do not want to take any glory for him but, if he chooses not to because he trusts the Government’s assurances, I would feel compelled to put his amendment to the vote myself.

I have been in a lot of legal briefings recently on several Bills, and all of them included phrases from the Government like, “Oh, you’ve got to trust us on this”, “Really, we assure you”, and “You can trust us”. Quite honestly, who trusts the Government any more? I bet millions of people do not—I certainly do not. I want something in the Bill that actually protects journalists.

Much of my political life has been about protecting civil liberties for everyone—even people I do not agree with, and people outside on the street sometimes. Journalism is a key plank of any free society and, if we allow legislation that risks having a chilling effect on journalists doing their jobs and holding the Government to account, we are not doing our job here and the Government are not doing theirs. I strongly promote Amendment 18 and support the Lib Dem amendments. I would love to move my Amendment 72, but it is tougher and your Lordships might find it harder to accept than Amendment 18.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Chair, Communications and Digital Committee, Chair, Communications and Digital Committee 4:15, 1 March 2023

My Lords, I will add a few remarks to what has already been said in the debate. My noble friend Lord Black comprehensively and powerfully set out the case for his amendment, which I support and have added my name to.

I emphasise that, like everyone else, I think, I support the Bill. It may be of interest to noble Lords to know that I signed the Official Secrets Act when I was just 18 years old, on my first day as a junior secretary in the Ministry of Defence. I knew very little about the world that I had entered, but it was impressed upon me from the start that I would be in possession of information that could endanger lives. I learned from an early age about protecting any information that could be weaponised against the UK or our citizens.

I also learned that part of what makes us such a powerful and important nation is our freedoms, especially our free press. I learned that it is critical that we do not do anything that risks journalists not being able legitimately to expose serious failings or wrongdoing by government or public servants, especially when those government failings themselves could threaten the lives and well-being of British citizens.

In Committee, we heard some powerful examples that could be at risk of being exposed in the future, for the reasons that were set out. That is why I believe it is essential that we do not legislate to protect our national security in a way that could stop journalists doing their legitimate job, however inconvenient to Ministers or public servants the results of this sometimes are. Journalists should not be threatened with prison for exposing the truth about ineptitude, incompetence or corruption within government, whoever is in power.

I echo what my noble friend Lord Black and the noble Lord, Lord Marks, said about the commitment of my noble friend the Minister, his ministerial colleagues and officials across Whitehall, who have given time and effort in trying to find a way forward. As the Minister laid out, the Government have come a long way towards addressing the concerns expressed during debates in Committee. Like others, I support all of the amendments that my noble friend tabled on behalf of the Government.

However, as my noble friend Lord Black explained, we need to go a little further and provide greater clarity than the Government’s amendments if we are to avoid a chilling effect on journalism, which could so undermine the public interest. That said, I fear that my noble friend the Minister may be unwilling to accept our amendment. That troubles me, because a Bill on national security and how a new offence could apply to journalism is not one on which I would like to see the House divided.

I can see why the Government might be struggling with the amendment or to come up with something else that provides the clarity that we need. As unthinkable and unlikely as it may be, I suspect that there is a fear within Whitehall that a journalist working for a recognised news publisher could collude with a foreign state seeking to do us harm and use this as a defence to get away with it.

I say to the noble Baroness, Lady Jones, that I want to listen to what my noble friend the Minister says at the end of the debate. It is important that we give him the opportunity to speak very clearly about this. I remind my noble friend that his words at the Dispatch Box are incredibly powerful in legal terms if they are made deliberately with the purpose of ensuring that there is complete clarity and no ambiguity when it comes to the intention of legislation.

If he will not accept this amendment, I want him to be very clear about the explicit limits of this offence. Can he put beyond any doubt that no journalist doing a legitimate job of exposing wrongdoing and failure by the state will be caught by this future Act of Parliament —if that is what it becomes—if they are not working on behalf of a foreign Government or agency? As I said, I want to listen to him, and I urge the noble Baroness, Lady Jones, my noble friend Lord Black and the rest of the House to do the same, because that is what I will do.

Photo of Lord Faulks Lord Faulks Non-affiliated

My Lords, I declare my interest as the chairman of the Independent Press Standards Organisation. I have also added my name to Amendment 18. I have very little to add to what has already been said by those who have spoken in the debate. The noble Baroness, Lady Stowell, has given a very good summary of the ruling of Pepper v Hart, although there first has to be ambiguity for the Minister’s words to have particular effect. None the less, I entirely agree with her that we will listen with great interest, as indeed will the media in general, to what the Minister has to say, to see whether he can give the assurance that is genuinely needed.

All I will add to what noble Lords have said already is that public interest journalism is genuinely under threat. It is very expensive to undertake, and editors can easily be deterred by the possibility of a wild goose chase. It would be an additional impediment to their encouraging proper journalism if they felt that one of their journalists or their publication was in some danger of finding themselves contravening the provisions of this very important Bill, which I also support in all respects. That is why this is a very significant group of amendments. As the noble Lord, Lord Black, said, citing Roosevelt, freedom of expression is fundamental. The press and the recognised publishers reflected in this amendment represent a very significant part of that freedom, and I hope that, in the Minister’s response to this group of amendments, we will get the reassurance that is so badly needed.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

My Lords, I have added my name in support of my noble friend’s amendments seeking further clarity on

“the interests of the United Kingdom”.

I remind the House of the very significant penalties that are associated with these offences. Since this is my first opportunity on Report, after speaking in Committee, I thank the Minister and his team for listening, and not just listening but acting, engaging with us on these Benches and bringing forward amendments that we believe will make the Bill fundamentally better. Ministers have been true to their word in acting, and I appreciate that. The way the Minister and his officials have conducted themselves is to be commended, and I put that on the record so that it is perfectly clear.

The area that is outstanding, however, as my noble friend indicated, is that we still retain a concern that simply referring to “interests” and relying purely on the judgment within the 1964 Chandler case is insufficiently wide. As I stated in Committee, I am in a significant minority in not being a lawyer but, from reading the judgment in Chandler, which I remind the House also related to nuclear and defence policy, the only reference the Government have given to highlight what the case law definition would be of

“the interests of the United Kingdom” is a defence and security interest. That is the only reference to the only case the Government have referred to. Therefore, it is not a significant leap to simply state in the Bill that this legislation is linked to security and defence interests. Without that, as my noble friend indicated, there is a concern that any government policy of the day that is not associated with defence interests, but is nevertheless activity that is directed by a foreign power, could be covered within this. Therefore, we still believe that there is a case for that to be defined.

I hope the Minister will respond to that point and say whether the Government are open to having further clarification of how “interests” are going to be defined, rather than just relying on that individual case. The reason I believe that that will now be necessary is because of one of the welcome concessions by the Government, which is to have an independent reviewer. We will come to government Amendment 85 later, but there will be a reviewer of this part of the legislation. For that reviewer to do their job properly—and we have noted reviewers and former reviewers in the House today—clarity on the Government’s intent regarding these interests will be important for the reviewer to look at the proper functioning of the legislation. I hope there will not be a grey area where there needs to be clarity, as the noble Lord, Lord Faulks, indicated.

My second point is that I welcome the Government seeking to narrow the area of information known to someone who is likely to fall foul of this legislation. Journalism is incredibly important. Unlike the noble Baroness, Lady Jones, I do not have friends at the Telegraph or the Sun to message me—we on these Benches do not often receive friendly messages from those journals—but I defer to her contacts with the Sun. Of course, she raises an important point in the context of what we debated last week in Grand Committee, the situation in Iran. We know that not only, as the noble Lord, Lord Faulks, indicated, is free, fair, impartial and independent journalism under threat around the world, but journalism is under threat in this country. There are countries that are persecuting journalists for operating within this country; therefore, the strongest defences for journalism are important. We believe very strongly that my noble friend’s Amendment 79, on a public interest defence, will provide a very sound defence for journalists carrying out their activities.

I have a question for the noble Lord, Lord Black. My understanding of the way that his Amendment 18 is written is that it would also cover whistleblowers. We have made the case for there to be protection for whistleblowers but, as I read his amendment, the defence is for a person who is not necessarily a journalist, but the intent is that the action will be for

“publication of material by a recognised news publisher”.

As I read it, Amendment 18 is therefore not limited to journalists. There may be unintended consequences that we may consider positive but the Government may not. I do not know whether the noble Lord, Lord Black, will an opportunity to respond, so I ask the Minister whether his interpretation of Amendment 18 is that it could include whistleblowers. The main result may be to protect those who have a public interest defence in operating within all these parts. We will debate this in the next group on Amendment 79. I hope that will be our opportunity to draw the ditch—if not die in it—fight our case and divide the House on ensuring that there is a defence for journalists and a proper public interest defence for those carrying out legitimate activities not to be captured by this Bill.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs) 4:30, 1 March 2023

My Lords, I shall be very brief. I thank the Minister for his explanation of the Government’s amendments. We recognise that they have come a long way since Committee. The amendments in this group seek to address the unintended consequences of offences for journalists and NGOs. Concerns have been raised throughout the Bill that the legitimate activities of journalists, such as the possession of leaked information, could lead to their prosecution. The main focus of today’s debate is Amendment 18 from the noble Lord, Lord Black. It aims to give a specific offence, whereas our Amendment 79B calls for an assessment of the impact of this group.

Given the significant concessions made by the Government, I will not divide the House on Amendment 79B and we will abstain on Amendments 18 and 72 if they are moved to a vote. However, I understand the point made by the noble Baroness, Lady Stowell, when she said that she would listen to the Minister, deliberate and see what will be done. I do not know whether the noble Baroness, Lady Jones, will press Amendment 18 to a vote even if the noble Lord, Lord Black, chooses not to. Either way, the Labour Party will abstain on those votes.

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department

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.

Photo of Lord Black of Brentwood Lord Black of Brentwood Conservative

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.

Amendment 1 agreed.

Amendments 2 and 3 not moved.