I am afraid that I am unaware of the precise timeline—I will find out. If the matter is not discussed in relation to the Kramer amendment, obviously I shall write to the noble Lord in respect of it.
I turn to the offences themselves, and the aspects that we consider move them away from capturing legitimate activity. For the Clause 1 offence of obtaining
or disclosing protected information, the activity has to be for a purpose prejudicial to the safety or interests of the United Kingdom. It is right that we are able to prosecute disclosures of protected information when it is clear that a person intended to harm the UK and was working for or on behalf of, or with the intention to benefit, a foreign power. Legitimate whistleblowing would not meet all the requirements of this offence.
The Clause 2 offence of obtaining or disclosing trade secrets is designed to tackle the illicit disclosure and acquisition of sensitive commercial information amounting to a trade secret for, on behalf of, or for the benefit of a foreign power. For the offence to be committed, the activity has to be unauthorised, and the person has to know, or ought reasonably to know, that their conduct is unauthorised. Someone who disclosed information in the course of using lawful and appropriate whistleblowing routes would not be conducting unauthorised activity.
The Clause 3 offence criminalises assisting foreign intelligence services. The offence can be committed in one of two ways: either by conduct of any kind that a person intends will materially assist a foreign intelligence service, or by conduct that it is reasonably possible may materially assist a foreign intelligence service and where the person knows, or ought reasonably to know, that that is the case. The material assistance must be material assistance in carrying out UK-related activities. The expression “UK-related activities” means activities taking place either inside the United Kingdom, or those taking place outside the United Kingdom which are prejudicial to the safety or interests of the United Kingdom. Legitimate whistleblowing activity should not meet the threshold for an offence under Clause 3, such as intending to materially assist a foreign intelligence service in carrying out covert operations in the United Kingdom.
I move on to the offences in Clauses 4 and 5, which criminalise harmful activity in and around prohibited places. It is right that we are able to prosecute relevant activity around the United Kingdom’s most sensitive sites where it is clear that such activity has been carried out to harm the United Kingdom. Activity carried out to harm the United Kingdom in this way cannot be in the public interest.
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Clause 4 allows the prosecution of those who intend to harm the UK with their actions, while Clause 5 covers those who conduct specified activity relating to those sites where they know it is unauthorised. I am sure that the Committee would agree that it would not be in the public interest for an individual to enter one of the UK’s most sensitive sites when they know that they are not authorised to be there.
I understand that there may be specific concerns around the public interest in protests being allowed to take place near these sites. However, as outlined, protesters would be caught only if the activity is conducted with a purpose prejudicial to the safety or interests of the United Kingdom, or if the person knows or ought reasonably to know that the conduct in question is unauthorised. A legitimate protest therefore would not meet these tests.
The same applies to journalists conducting activity near these sites. For example, a journalist taking photos from outside a prohibited place, where they do not have a purpose prejudicial to the safety or interests of the United Kingdom and there is no signage to say it was not permitted, would not commit an offence. As we have already committed to in an earlier debate in Committee, the Government will work with the police to ensure that there is clear guidance in place to ensure that protests and other legitimate activity is policed appropriately.
I hope that my explanation has been helpful in explaining why it is the Government’s clear position that these offences are sufficiently tightly drawn so as to be targeted at harmful espionage activity—