My Lords, this group concerns the public interest defence which is contained in Amendment 79 in my name, and the names of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Garnier, to whom I am very grateful for their help, counsel and support. I am not sure that the noble Lord, Lord Pannick, has made it here so far because he is in court, but I expect him shortly, although he may not speak.
Our amendment would introduce a public interest defence to offences under Clauses 1 to 5 of the Bill, together with the amended Official Secrets Act defence, amended by Schedule 17 at paragraph 5. The group also contains associated amendments, together with Amendments 18A and 79A, tabled by the noble Lords, Lord Coaker and Lord Ponsonby.
Although, as discussed in the last group, the Government have made a number of welcome concessions since Committee in tightening up the offences set out
in the Bill, there has been no concession on a public interest defence. That is despite the repeated strong calls in the press and elsewhere, from many quarters, for such a defence; and despite the fact that such a defence is available in our Five Eyes partners and that the Law Commission recommended one here in 2000, and so did the Joint Committee on Human Rights. Each expressed the view that the lack of such a defence risked our being in breach of Article 10 of the European Convention on Human Rights.
While the Government may not have moved, we have. Amendment 79 is significantly changed from the amendment I tabled in Committee, in large part to meet the reservations expressed on my amendment in that debate. First, the burden of proof has been changed. The amendment in Committee would have imposed the burden of proof on the prosecution to disprove the offence once it was raised, and to do so to the criminal standard of beyond reasonable doubt. Some noble Lords thought that this imposed on the Crown a burden that would be too difficult to discharge in a security-sensitive context. While I am doubtful that that is the case, I accept the point, and I also accept the difficulties of proving a negative. So our amendment now imposes the burden on the defence to prove its case on the balance of probabilities—the civil standard that is usually applied in these cases.
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Also significantly, the element of subjectivity in our amendment has been replaced by overall objectivity. It would be for the jury to decide not what the defendant reasonably believed—which was our position in Committee —but whether their conduct was in fact carried out in the public interest, having regard to the factors proposed new subsection (3) in our amendment, which is based on the Public Interest Disclosure Act 1998. Those factors have been altered to respond in particular to the point made in Committee by the noble Baroness, Lady Manningham-Buller, that it is important that whistleblowers within the security services and elsewhere go through recognised channels where available, rather than making public disclosure at the outset. That is why proposed new subsection (3)(f) now reads:
“Whether such conduct was in the public interest is determined by having regard to … the availability of any other effective authorised procedures for achieving the purpose of the alleged conduct and whether any such procedures were exercised, and if any such procedures were not exercised, the reasons why they were not so exercised”.
The amendment has also been extended to cover the amended offence under the Official Secrets Act 1989, which is to be significantly broadened by Schedule 17 to the Bill, so that the offence of disclosing information obtained by espionage now extends instead to a breach of any of Clauses 1 to 4 of this Bill, which include obtaining or disclosing protected information, the trade secrets offences, assisting a foreign intelligence service—even a friendly one—and the prohibited places offences.
Since this amendment has been tabled, I have received no criticism at all of its drafting. I have received no criticism at all of the factors we have listed in proposed new subsection (3). Importantly, I have received no criticism of our proposal that this defence should be available to all, not just to investigative journalists or campaigners. That accords with the recommendation
of the Law Commission in 2000, which also recommended a universal defence. We believe that is right because, although it is a very important part of a public interest defence that it should protect journalists and investigative reporting—and indeed campaigning and political campaigning—nevertheless, it is important for ordinary citizens, too. Certainly, we maintain the position mentioned by the noble Lord, Lord Black, in the last group that there is a very severe chilling effect for journalists and campaigners of introducing these very serious offences, with very long potential prison sentences—life for Clause 1 offences and 14 years for the other offences in Clauses 1 to 4. That is a matter of real concern.
But this is also about exposing wrongdoing. It is to protect not just whistleblowers who see wrongdoing from within organisations but ordinary members of the public who become aware of it by whatever means. They, too, would be deterred from taking action to expose that wrongdoing if they thought that by so doing they would be criminalised under the Bill without an opportunity to mount a defence.
This amendment covers cases such as that of Clive Ponting, who exposed the truth about the sinking of the “Belgrano” in 1982. I also mention the Matrix Churchill case in 1992 and the cover-up of sanctions-busting, though that is it not on exactly the same ground because that prosecution collapsed when a government Minister, Alan Clark, came up with the truth that the Government had connived repeatedly at the breach of sanctions against the sale of arms to Iran. Nevertheless, the Government had previously given an untruthful account of the breaches of sanctions, and that untruthful account could have been, and ought to have been, exposed well before any prosecution of the directors of Matrix Churchill.
The idea that we can rely legitimately upon juries to give perverse verdicts, such as they gave in the Ponting case, to correct injustice, is a travesty of the rule of law. How can we, in conscience, pass a law that criminalises behaviour without an available public interest defence, then expect judges to direct juries that there is no defence in law, and then rely on those juries, in breach of their oath, to give a true verdict according to the evidence—and that is of course according to the law as directed—to acquit anyway? That is not just unsatisfactory, as it has been described in debates on this Bill; it is entirely unacceptable.
Nor is it any answer that these prosecutions require the Attorney-General’s consent. There are many failed prosecutions that have been authorised by Attorney-Generals. There is a matter of principle that, in our system, a defendant is entitled to a decision by a jury. They should not have to rely on a decision that authorises his or her prosecution. Although I entirely accept that law officers may be expected to make their decisions in an impartial way, their decisions are not the same as decisions made by juries on full consideration of a public interest defence.
We have completely understood the concerns of those who are worried about the safety of intelligence service officers, those concerns having been eloquently expressed in Committee by the noble Baroness, Lady Manningham-Buller. However, I suggest that the deployment of a public interest defence at a trial, many months after the conduct concerned, is unlikely to increase the
risks faced by the intelligence services, which we all want to minimise, so completely and significantly as to put us off introducing this defence.
I will say a word or two only about the two Labour amendments. Amendment 18A from the noble Lord, Lord Coaker, calls for a consultation and the publication of a report on that consultation. However, it relates only to the offence under Clause 3(2) of assisting a foreign intelligence service. There is nothing on disclosing information, the extremely broad trade secrets offences or the prohibited places offences. The time now is passed for a limited review. The facts are out there, and it is time to introduce the defence now, at the point when these security offences are being so significantly extended by this Bill, particularly in the change in the definition of foreign power to encompass all Governments that are not our own, except for the Irish Government.
I am told that Labour will not whip to vote in favour of our amendment. If that is right, and if I have not persuaded it to do so, that is a great shame, and represents a departure from the position taken by many distinguished Labour figures in the past. It is a shame that Labour has not stuck with the decision taken in the House of Commons by Kevan Jones MP, who supported a public interest defence in similar terms to those which we now propose. It is not only Labour. I remind the House that Ted Heath was vociferous in his support of a public interest defence to security cases many decades ago.
The proposal from the noble Lord, Lord Ponsonby, for a statutory commissioner for the investigation of complaints by whistleblowers represents a helpful step, but it does nothing to provide a defence to investigative journalists, campaigners or others who expose wrongdoing but do not fall into the categories of whistleblowers who would be assisted by that amendment. We need far more, and we need it in this Bill. I beg to move.