In this blog Protect Legal Adviser Phoebe Mather reflects on the National Security Bill’s journey through the House of Lords, explaining why it is so vital a public interest defence be added.
Hot on the heels of failed attempts in the House of Commons to amend the National Security Bill to include a public interest defence designed to protect whistleblowers and journalists from prosecution, Lord Marks of Henley tabled a further amendment in the Lords to add a public interest defence to the offences created under Clause 1 to 5 of the Bill, once again inspired by the Public Interest Disclosure Act 1998.
Clause 1(1) of the National Security Bill states a person commits an offence if they obtain or disclose ‘protected information’ to a ‘foreign power’ for a purpose that they know, or ought reasonably to know, is prejudicial to ‘the safety or interests of the United Kingdom’. The maximum prison term is life imprisonment. Under Clause 2(1), obtaining a person commits an offence if they obtain or disclose ‘trade secrets’ to a ‘foreign power’ and their conduct is unauthorised, or the person knows, or reasonably ought to know that their conduct is unauthorised. The maximum prison term is 14 years imprisonment.
When presenting the amendment, Lord Marks explained that none of the large number of briefings calling for a public interest defence suggest that a public interest defence is a bad idea or that it would imperil national security. The Liberal Democrat peer stated that without a public interest defence there was a threat to investigative journalism: criminalising revealing of sensitive information to a ‘foreign power’ and accompanying very long sentences would send a chilling wind threatening open democracy. Lord Marks also noted how the UK’s Five Eyes partners Canada, Australia and New Zealand have some form of public interest defence to charges under similar legislation. Significantly, he made specific reference to the equal risk posed to public servants and whistleblowers who expose wrongdoing, and whom may be equally deserving of an acquittal with the use of a public interest defence.
Lord Marks explained the tabled defence was close to the statutory defence recommended by the Law Commission for unauthorised disclosures of information protected by the Official Secrets Act 1989. Lord Coaker, whilst acknowledging that care needs to be taken with a public interest defence so as to not compromise national security, urged the House to recognise that many respected organisations have come forward to say the Bill causes problems for whistleblowers and investigative journalists.
Unfortunately, the Government was not persuaded by these arguments. Home Office Minister Lord Murray denied that the offences in Clauses 1 to 5 of the Bill would have a chilling effect on legitimate whistleblowing. On the matter of a public interest defence, the Government’s position is that it is neither necessary or appropriate and that the defence, as drafted, would act as an open invitation to those who seek to conduct espionage against the United Kingdom, and it would require the disclosure of further sensitive material in order to disprove the defence.
Following the withdrawal of the amendment to enable further debate, Lord Marks said there can be no doubt that the Bill will manifestly broaden the ambit of national security because it targeted all citizens, rather than just those with obligations to the state (e.g. civil servants). He also expressed the lack of assurance from the Minister that there could be a cover-up of wrongdoing which it would not be possible for citizens to redress by disclosure without being subject to criminal proceedings. Lord Marks stated that he could not accept that a public interest defence was not in the interests of the public and the nation.
We are pleased to see that the need for a public interest defence was further raised and debated in the Lords at second reading and committee stage.
The debate has not lessened our concerns that the wide drafting of ‘foreign power’ in the Bill as including ‘an agency or authority of a foreign government, or of part of a foreign government’ could encompass foreign regulators or foreign law enforcement bodies with whom it is vital whistleblowers are to raise concerns without fear of being criminalised. In our globalised world, whistleblowers may raise public interest concerns with a foreign regulator or law enforcement body if the wrongdoing in question has not, or cannot, be addressed by a UK regulator, and/or if the whistleblower works in the UK for a company based abroad. A point we elaborate on in this briefing.
Under the Bill as it stands, it is irrelevant to the offences created by Clause (1(1) and 2(1) whether the disclosure is in the public interest – it will not be something a jury is asked to consider when deciding whether to convict an individual. The reassurances offered by the Government continue to create uncertainty for whistleblowers which may in turn inhibit their ability to raise international corruption, fraud or bribery public interest concerns. It is wishful thinking from the Government to think banning a public interest defence will prevent juries from finding such a defence. There have been situations, such as the collapse of Katharine Gunn’s prosecution for breaching the Official Secrets Act 1989 in relation to the Iraq War where the prosecution was aware that a jury may see the public interest in the actions of a whistleblower, even if the law does not.
The absence of a public interest defence in the Bill risks repeating the mistakes found in the Official Secrets Act 1989, namely that the absence of a defence in statute is no guarantee that a more unpredictable form of the defence may emerge.