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The National Security Bill – Parliamentary Debate

In this blog Protect Legal Adviser Phoebe Mather reflects on last week’s debate on the National Security Bill and the presentation of a new clause to introduce a Public Interest Defence. She explains why it is so vital a public interest defence be added and why it is disappointing the government opposed it. 

Last week, the National Security Bill was debated at committee stage. Former Labour defence minister Kevan Jones MP presented a new clause for the introduction of a public interest defence to the disclosure offence created by clause 2 of the Bill, and the section 5 disclosure offence in the Official Secrets Act 1989.

There is currently no defence under the law for a whistleblower who, in the course of raising concerns about wrongdoing, malpractice or illegal activity conducted by the executive, reveals sensitive Government information. As such, the current Official Secrets Act and the proposed National Security Bill puts disclosures made by government whistleblowers on the same level as those made to foreign powers by those working in espionage, subjecting them to criminal proceedings and potential imprisonment.

The proposed public interest defence has received cross-party support from MPs in all the major opposition parties as well as those from the Governing party. The Law Commission has also supported the introduction of a public interest defence. They stressed in their 2020 report Protection of Official Data their concern “to ensure that those with evidence of wrongdoing in government do not feel that they must commit a serious criminal offence and take the law into their own hands, risking both the national security, and people’s lives, in order to have that evidence properly investigated”.

The proposed defence is ‘substantially’ based on section 43G of the Public Interest Disclosure Act 1998 (PIDA). Section 43G details criteria that an individual must fulfil in order for their wider disclosure (a disclosure made beyond their employer, or an identified regulator known as a prescribed person) to be protected under whistleblowing law. Additionally, and notably, the proposed defence features a ‘good faith requirement’. Such a requirement was removed from PIDA in 2013 and so it is unclear whether the drafted defence was based on a previous version of the law or the good faith requirement has been purposefully brought back to the surface for this specific defence.

Kevan Jones MP noted that civil servants who whistleblow are at the mercy of juries to decide their fate. While Clive Ponting was acquitted, and Katharine Gun’s prosecution withdrawn, there is a lack of legal certainty. He argued that if there was a statutory defence, it would be available for conscientious whistleblowers, but not reckless data dumpers, due to the need to demonstrate the public interest.

The Minister, Tom Tugenhat MP, did not accept the amendment, arguing that though other countries had a public interest defence it did not follow that it was appropriate for the UK, frustratingly he did go into more detail on this point. The Minister also stated that even a single release of some of the type of information in question could be extremely damaging to the national interest. The Minister asked for the amenmdent to be withdrawn, which it was, but did offer to meet with Kevan Jones to explain further the government’s thinking.

Protect’s View

In the name of whistleblower protection, executive accountability and clarity of the law, Protect has long been calling for the introduction of a statutory public interest defence for civil servants and intelligence workers charged under the Official Secrets Act for making unauthorised disclosures. Therefore, whilst it was pleasing to see the proposed defence selected for debate, we are disappointed that the Government were unable to support this principle.

We fear that without a public interest defence to the new National Security Bill and the 1989 Official Secrets Act, especially in light of the Bill’s proposed increased custodial sentences, whistleblowers will likely be deterred from raising concerns. This will leave potential serious wrongdoing, misconduct or illegality conducted by the executive sheltered and protected. This in turn raises serious questions over the transparency and accountability of the state – principles which our democracy relies upon.

We welcome the Minister’s willingness to have ongoing discussions on the subject, but as Kevan Jones MP said – this issue will not go away.  A public interest defence would enhance, rather than undermine, laws that protect Government information by removing the uncertainty of leaving decisions to a jury alone. As the Bill progresses, we hope the Government will reflect and not miss the opportunity to introduce a public interest defence which would give much needed legal certainty to those working for the Government.

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