My Lords, I thank all noble Lords, and the noble Baroness, for their contributions to this short debate. I also thank the Joint Committee on Human Rights for its report and its close scrutiny of the Bill. I take the opportunity to confirm that the Government’s response has been published today, and I have asked for a copy to be placed in the Library of the House.
The Government consider that limiting what can be captured under “protected information” to specific security classifications, as the noble Baroness’s amendment seeks to, risks creating loopholes within the provision that could significantly undermine the operational utility of the offence. There are already limits to what “protected information” covers: protected information is any information, document or other article, where, for the purpose of protecting the UK’s safety or interests, access to it is restricted, or it is reasonable to expect that access would be restricted. I therefore suggest that there lies the answer to the question posed by the noble Lord, Lord Ponsonby. Moreover, the current definition of protected information would cover instances where information may have been misclassified but would still be extremely harmful if shared widely.
In contrast to the proposed amendment, the current definition of protected information also includes instances where seemingly less sensitive unclassified information or lower-classification information from within a government building or on a government computer system was obtained but could undermine the safety of the United Kingdom if disclosed to a hostile actor.
To answer the question asked by the noble Lord, Lord Marks, this could include the floor plans of a government building or even an organisational chart of a team working within that building. There are many examples of official documents at lower classification levels that may also be harmful if disclosed, such as information about a UK trade deal with another country. It is imperative that this breadth of information is also covered within the definition.
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On Amendment 6, the Government consider that limiting what can be captured under protected information by removing any information where it is reasonable to expect that access is restricted in any way risks undermining the operational utility of the offence. It is critical that information where access is not restricted but would reasonably be expected to be is captured by this offence. For example, this would cover the theft of the identity documents of an intelligence officer from within their place of work because the context of the theft would mean that it would be reasonable for the person to expect that that sort of information would be protected. Another example might be where a pile of papers that were not marked as classified were stolen from inside a government building and then disclosed to a foreign power. There is a reasonable expectation that, given where they were being held, access to those papers was restricted, whereas if we accepted this amendment such information would not meet the test of protected information. I am sure the Committee would agree that this type of information should clearly be caught as protected information.
To be clear, meeting the definition of protected information is just one of three tests in Clause 1, all of which need to be met to bring a prosecution: a person must obtain or disclose protected information for a purpose that they know or ought reasonably to know is prejudicial to the safety or interests of the UK and the activity must be conducted for, or on behalf of, or with the intention to benefit a foreign power.