My Lords, I want to pick up two points raised by my noble friend Lord Coaker in his introduction, and which others have touched on in the course of the debate. They are the proposals in the Bill to criminalise legitimate public interest journalism, and to ask whether the measures included within this Bill, and the similar measures in the Online Safety Bill, are sufficiently harmonised.
The Minister has explained the rationale for the Bill and noted the influence of the preceding Law Commission review. However, the Joint Committee on Human Rights points out that, although the Bill is broadly in line with the Law Commission recommendations, it does not include all of them, and as a result there are risks that the Bill would
“criminalise behaviour that does not constitute a threat to national security”
and
“interfere unnecessarily and disproportionately with rights to freedom of expression and association”.
A free and independent press facilitates government accountability and the public’s right to know, but the nature and scope of the proposed espionage offences will have a chilling effect, discouraging sources—including whistleblowers—from coming forward and engendering a risk-averse environment in media organisations. Others have argued that the failure to include a public interest defence in the Bill poses a grave threat to investigative journalism and its sources.
Clause 5 outlines conditions under which unauthorised entry to a prohibited place would be a criminal offence. The noble Lord, Lord Marks of Henley-on-Thames, expressed concern that photographers capturing material as part of their journalistic duties would thereby fall into scope of the Bill. The Law Commission envisaged a public interest defence available to anyone—including journalists and photographers—charged with an unauthorised disclosure under the Official Secrets Act 1989 on the basis that
“it was in the public interest for the information disclosed to be known by the recipient; and … the manner of the disclosure was in the public interest.”
I accept the concerns expressed by the noble Lord, Lord Evans, and the noble Baroness, Lady Manningham-Buller, but I believe that the courts would be able to reach a view on such cases, and I urge the Government to introduce the defence.
The Law Commission also advocated having a statutory commissioner to investigate allegations of wrongdoing or criminality made by civil servants or members of the public where disclosures of such
concerns would be an offence under the 1989 Act. There may be other protections for whistleblowers, as has been pointed out, but there is a principle at stake here. The report I have already quoted noted that the
“recommendation for a statutory commissioner, fortified by a public interest defence, … is about a fair law that takes seriously the public interests in national security and in accountable Government”,
so it would have a dual function. Who could resist calling for “fair law” anyway? That would be nice.
A public interest defence enables matters of public interest to be scrutinised and debated and allows malpractice to be exposed and addressed. I suggest to the Government that this could help them with the problem they are having with the issue of “legal but harmful” material and freedom of expression in the Online Safety Bill. The intention in this Bill is clear: to ensure that platforms in scope of the Bill do not have the right to take down content from “recognised news publishers”, and that their websites are also exempt from the Bill’s scope. But the problem lies in defining “news-related material” and determining what constitutes “recognised news publishers”. As the Joint Committee for pre-legislative scrutiny of the Online Safety Bill—I declare my interest as a member—recognised, introducing a public interest test in the Bill for this purpose would be very helpful in this context, and it would have the additional benefit of ensuring that hundreds of independently regulated specialist publishers’ titles are not excluded from the protections afforded in the Online Safety Bill.
I look forward to the Minister’s response.
5.47 pm