My Lords, I thank Members of the Committee for all their speeches. Amendment 119 seeks an assessment of how the Act relates to the Official Secrets Act 1989. As we set out in last week’s debate, the new espionage offences in Part 1 of the Bill replace and reform the existing provisions in the Official Secrets Acts from 1911 to 1939. They carry strict tests for a person to be caught within those sections. For example, the first two offences apply when a person is acting for, on behalf of, or with the intention to benefit a foreign power. This is distinct from the Official Secrets Act 1989, which covers unauthorised disclosures by Crown servants and government contractors. As the Committee knows, the Government are not reforming the 1989 Act through the Bill, as has been observed this evening. Under the existing law, it is possible that a person making a damaging disclosure could commit both the espionage offence in the Official Secrets Act 1911 and an offence under the Official Secrets Act 1989.
Pausing there, I thank the noble Lord, Lord Hacking, for his contribution in relation to the 1911 Act. The difference, drawn out in the fact that you could commit both an offence of espionage under the Official Secrets Act and an offence under the 1989 Act, will continue to be the case. It is possible that a person could commit an offence under two pieces of legislation simultaneously and be charged in relation to both. That is not a matter unknown in the criminal law. Any overlap between the espionage offences in the Bill and the Official Secrets Act 1989 allows us to prosecute damaging acts in the most appropriate way. Where a person commits both a 1989 Act offence and an espionage offence under the Bill, the charging decision would be taken by the Crown Prosecution Service in accordance with the Code for Crown Prosecutors, as is always the case. CPS prosecutors select the charges that they consider are most appropriate on the facts of each case, and to reflect the nature of the wrongdoing. I hope that this explanation reassures the Committee that the Government have carefully considered the interaction between our new offences in the Bill and those in the 1989 Act.
The noble Lord, Lord Coaker, raised a question regarding reform of the 1989 Act, and I will address it directly. The Government’s view is that the Official Secrets Act 1989 is an essential part of our ability to protect national security and sensitive information. However, the views and concerns raised by stakeholders in response to our public consultation for the Bill, including those in favour of not reforming the Act at all, highlight the complexity of the legislation and the wide variety of interests that should properly be considered before pursuing any reform. Given its complexity, we are also concerned that reform of the Official Secrets Act 1989 at this time may distract from the Government’s
package of measures in the Bill to counter state threats, and prevent us from providing law enforcement and the intelligence agencies with the tools that they need now directly to tackle these threats. Accordingly, we do not have any immediate plans to pursue reform of the Official Secrets Act 1989, but will continue to keep that position under review. The matters raised by the noble Lord, Lord Wallace, are well considered. Issues such as whether to increase maximum sentences under the Official Secrets Act 1989 would be considered as part of potential reform proposals and would be viewed in the round with the measures of sentences in the Bill.
Amendment 120 tabled by the noble Baroness, Lady Kramer, proposes the establishment of a new office for the national security whistleblower. We are told that the aim of such an office would be to protect whistleblowers who make disclosures related to offences under the Bill where disclosures are considered to be in the public interest. Of course I pay tribute to her in her ongoing work and efforts to champion the important cause of whistleblowing. The Government are committed to ensuring that our whistleblowing framework is robust, and I confirm that the business department intends to carry out the promised review of the existing framework, and that further details will be set out in due course in relation to that.
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However, as the Government outlined last week on the public interest defence—as many noble Lords present will remember—the offences in the National Security Bill target harmful activity by or on behalf of states, not leaks or whistleblowing activity. As the Law Commission said during oral evidence to the Committee for this Bill in the other place, and as the noble Lord, Lord Hacking, noted, the requirements of these offences take them outside the realm of leaks and into the realm of espionage. Consequently, the creation of a whistleblowing office in relation to the Bill is, in essence, a misunderstanding of the aims of this legislation.
Having said that, I welcome the opportunity this amendment brings to outline the Government’s commitment to individuals who seek to raise concerns about national security information pertinent to the Official Secrets Act 1989. The Government recognise that there may be situations where an individual has a legitimate need to raise a concern; for example, where there may have been wrongdoing or where they think there is a public interest in disclosing that information.
As we discussed on the previous occasion in Committee, there are already a number of existing internal and external authorised routes in government through which individuals can raise such concerns. The number of routes has increased since 1989 and the Government consider them to be safe and effective. Many were outlined in the powerful speech given by the noble Baroness, Lady Manningham-Buller, during the debate last week on the public interest defence. With great respect to the noble Baroness, Lady Kramer, I find the testimony given by the former director-general of MI5 to be persuasive on what the view of an intelligence officer might be. That appears to have been confirmed in the contribution we just heard from the noble Lord,
Lord Evans of Weardale—in particular, his assessment of the culture in the intelligence services being one of honesty and integrity.