My Lords, this is a JCHR-recommended amendment under Clause 2, which is about making it an offence to obtain or disclose trade secrets, punishable by up to 14 years’ imprisonment. Again, the JCHR feels that, as the offence is about the sharing of information, freedom of information—protected under ECHR Article 10—is engaged, including the potential that it may catch journalism, political expression or whistleblowing.
It is difficult to justify this as being in the interests of national security because no element in the offence has a link to the interests of national security, or indeed to the safety or interests of the United Kingdom. In their human rights memorandum the Government did not address the compatibility of this offence with ECHR Article 10. In the offence there is no requirement for there to be any detriment to the UK or to the public. As such, this seems to be really an offence of theft affecting a private actor. It does not really belong in a national security Bill.
The examples given in the Explanatory Notes relate to artificial intelligence and energy technology, which suggests that the Government envisage industries with
links to critical infrastructure and national security concerns for this offence, rather than mere commercial secrets—important but not relevant in the Bill—relating to industries that pose no risk to national security. But as drafted the offence risks catching all trade secrets, no matter their relevance or lack of relevance to national security. As I say, that is more properly governed by the offence of theft. In his reply, perhaps the Minister can tell me why it is not covered by the offence of theft.
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This amendment would add to the clause a requirement that the disclosure of a trade secret is
“prejudicial to the safety or interests of the United Kingdom”.
We on these Benches have also tabled amendments to tighten up the definition of
“interests of the United Kingdom”.
As in all our other discussions this afternoon, this is about precision and targeting rather than sweeping up all kinds of things that are not properly part of a national security Bill.