My Lords, I think this amendment has substantial problems. If I may, I will remind the noble Lord, Lord Marks, of what Article 10 actually says—I have borrowed the iPad of the noble Lord, Lord Carlile, which is still working, my iPhone having died. The second paragraph of Article 10, after talking about freedom of expression, says:
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security”,
and a string of other things are added to that. I just remind the noble Lord of that qualification.
If the BBC and others are making such remarks, then of course we should take them seriously. I have not received all this briefing, but perhaps that is understandable. It is superficially attractive to have a defence of public interest, but let me explain to the Committee why it is really very difficult. From it, the risk of release of national security information is substantial. What does that mean? National security information includes information that can indirectly identify the sources of intelligence, whose lives may be at risk. It can identify sources and methods that are vulnerable and unable to be defended.
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There are a number of really problematical areas in the amendment. It risks emboldening an individual who wishes to release national security information in the hope that they can rely on a public interest defence. Proposed new subsection (2) suggests that the prosecution has
“to prove beyond reasonable doubt that the conduct alleged was not in the public interest”,
but the reality is that it will be very hard to prove that without compounding the damage already caused by the release of the information.
There is also a high risk of the individual making a miscalculation on whether the public interest in disclosure outweighs the public interest in maintaining secrecy. Even if the person leaking that national security information believed in the nobility of what they were doing and had no malign intent, which I can accept, it could have catastrophic impact, leading to serious harm and loss of life. There is a real difficulty of rebuttal at trial, as I mentioned, because of compounding the damage, even when the individual had malicious intent.
I think we will come to talk about the whistleblowing amendment from the noble Baroness, Lady Kramer, who is not in her place but to whom I have talked a little about this. At the risk of saying now some of what we will say then, I want to reassure the Committee on the channels available. I can talk only for MI5, but if members of the service are concerned about wrongdoing they can go to the senior legal adviser, to the ethics counsellor—an appointment made when I was director-general—to talk about ethical issues about which they are concerned, and to the director of policy, security, and information and compliance. These are designated officers with whom real matters of concern can be raised. They can also go to the external staff counsellor, who sits in the Cabinet Office. They may also, with permission, which would be given, go to consult the Permanent Under-Secretary of State of the Home Office; the National Security Adviser; the Cabinet Secretary; the chair of the Intelligence and Security Committee; the Comptroller and Auditor-General, if it is a matter of financial wrongdoing; or the Attorney-General, if it is a legal issue.
I am sure that noble Lords will wish to go into that in a bit more detail when we come to talk about the whistleblowing amendment, but at this stage I would say that the amendment, however attractive on the surface, potentially represents a quite serious threat to national security. There are provisions for people to raise substantial concerns through various channels.