My Lords, before I speak to the amendments in this group, I would like to talk about some of the reasons why we are introducing them. Some of our amendments have been brought forward to reassure noble Lords and others that the offence will not capture the genuine work of journalists. We have listened to the concerns raised by the media sector and noble Lords in the House, and some of these amendments are a direct response to them.
The Government have heard from media stakeholders who believe that they could no longer hold the Government to account and that these clauses could inhibit the publication of articles critical of the UK’s defence or security response. I want to address those concerns directly. The Government are committed to defending our freedoms—values which define us and make us who we are. Few are more fundamental to that than freedom of the press. There is no intention to stifle or censor the media’s ability to expose or shine a light on issues. That is the proper role and function of the media and why the UK is such a strong advocate of media freedom globally.
Before we get into the details of individual provisions, I remind the House that these provisions replace the existing law in the Official Secrets Act 1911. We have been provided with a number of examples of journalistic reporting that have been cited as part of the case that more must be done to protect journalists in this Bill. Even were the Government to accept that any of these examples could hypothetically be caught by any of the offences, the same would be true of the existing laws. Accordingly, great comfort should be taken from the fact that no prosecutions of journalists have taken place under the espionage laws to date. I want to confirm again, on the record, that the focus of the Bill is on protecting the UK from threats from foreign states and those acting against UK interests, not interfering with the free press.
I begin with the amendments focusing on “ought reasonably to know”. The phrase was said to be unclear, with concerns raised that it could be interpreted as imputed knowledge, thereby catching those who engaged in specified conduct unwittingly—who did not know but are told that they should have known. I would like to strongly emphasise that this is not the Government’s intention and we do not consider that the current formulation would be interpreted by the courts in this way. However, we have considered the concerns raised on this issue, particularly the useful contributions in Committee from the noble and learned Lord, Lord Hope, and the noble Lord, Lord Marks. We agree that it would be helpful to clarify the meaning. These amendments therefore clarify that the prosecution must look at what matters were known to the individual at the time in determining whether that individual ought reasonably to have known something.
I now turn to amendments which all relate to the offence of materially assisting a foreign intelligence service. The amendments that the Government have put forward update the offence provided for in Clause 3(2). These amendments are similar to the ones put forward in Committee by the noble Lord, Lord Marks. The effect of these amendments is that the wording
“it is reasonably possible may”
in both Clauses 3(2)(a) and (b) would be replaced with “is likely to”, which in this context we see as meaning a real possibility. In order to ensure consistency across the clause, Amendment 13 also updates the relevant wording in Clause 3(3).
The Government have tabled amendments in response to a point raised in Committee by the noble Lord, Lord Pannick. These would add protections for lawyers, ensuring that any genuine legal activity will not be captured under the Clause 3 offence in the Bill. I beg to move.