National Security Bill

Written evidence submitted by Matrix Chambers, Mishcon de Reya, Powerscourt Group for the National Security Bill Committee (NSB0 4 ).  

Executive Summary

· The Rt Hon Kevan Jones MP has submitted an amendment for the introduction of a public interest defence ("PID") to Official Secrets Act 1989 ("OSA89") offences in the National Security Bill ("NSB"). There has previously been disagreement as to whether such an amendment is within the scope of the Bill. In our view, for the reasons set out in the recent cross-party letter to the Speaker, a PID is plainly within scope because the disclosure offences in the OSA 89 are directly affected by the NSB.

· This is because:

o Schedule 11 para 6 to the NSB enlarges the scope of offences within OSA89 so that the section 5 passing on offence in OSA89 also applies to the new offences which are created by clauses 1-4 of the NSB.

o Schedule 11 of the NSB treats the new offences in the Bill as equivalent to the existing disclosure offences in OSA89.

o The "connected purposes" in the Long Title of the NSB thus already include (via Schedule 11) making amendments to and enlarging the scope of OSA89. An amendment which introduces a PID into OSA89 is therefore plainly also within such "connected purposes" so as to be within scope of the NSB.

· A PID is necessary because:

o It would bring clarity and predictability to the law. At present, public interest considerations enter prosecutions for OSA89 offences by the back door – for example, by juries taking the law into their own hands and giving effect to their personal view of the public interest by acquitting contrary to law, in so-called ‘perverse acquittals’.

o The introduction of a PID would act as a deterrent to the making of unauthorised disclosures. At present, the law treats a reckless and indiscriminate data dumper in the same way as a conscientious person who makes a targeted and limited disclosure which they have carefully assessed to be in the public interest. The introduction of a PID would draw a clear line between these cases and would therefore disincentivise data dumping.

o The OSA89 is incompatible with the right to freedom of expression (article 10 of the ECHR) because it creates criminal offences without any regard to the proportionality or public interest in any particular disclosure. The Law Commission has recommended the introduction of a public interest defence because existing law is not compatible with international legal standards.

· The introduction of a public interest defence to offences in the OSA89 has already attracted widespread public support from a number of prominent members, including former Ministers, a former Lord Chancellor and former Attorneys-General, and the issue has received widespread national press coverage as a result. [1]

Introduction

1. This written evidence is submitted by a team of legal and political experts from Matrix Chambers, Mishcon de Reya LLP, and Powerscourt Group , who have coordinated a campaign for the introduction of a PID to the OSA89 , funded by Janus Friis , a  tech entr e p r eneur and philanthropist [2] . The legal protection provided by a PID, for those who act in good conscience and without excusing those who act in a manner that is prejudicial to the safety or interests of the United Kingdom , is necessary to ensure accountable democratic government .

A PID is within the scope of the NSB

2. As set out in the cross-party letter to the Speaker, and in the Executive Summary above, a PID is well within the scope of the NSB.

3. The NSB as drafted already amends the OSA89: see Schedule 11. It does so by creating new offences (Clauses 1-4 NSB) and treating those new offences (pursuant to Schedule 11) in the same way as existing OSA89 offences (by incorporating them all into the passing-on offence in the OSA89). The long title of the Bill makes clear that it covers threats to national security and "… connected purposes". The current amendment to the OSA89 in Schedule 11 NSB is one of those "connected purposes", and therefore the introduction of a PID to OSA89 must also fall within the "connected purposes" of the Bill.

A PID is urgently necessary

4. A functioning democracy requires, on the one hand, the power to limit the disclosure and dissemination of sensitive official information (and to enforce those limits) and, on the other hand, a sufficient degree of public scrutiny and transparency to ensure the executive is accountable for its conduct. The democratic norms that underpin that delicate balance have evolved in the decades since the OSA89 was introduced, and the lack of PID in the existing legislation reflects the now-outdated standards that prevailed at the time.

5. Indeed, a PID is now urgently necessary. In our view it must:

· Apply to all offences currently contained in the OSA 1989, whether involving primary or onward disclosure (and thus including the new offences intended to be introduced by the NSB);

· Apply equally to all individuals;

· Require an individual to demonstrate both a subjective and objective element: i.e. that they believed the disclosure was in the public interest, and that it was (assessed objectively by statutory criteria) in the public interest in order to benefit from the defence;

· Require an individual also to demonstrate that the manner of the disclosure was objectively in the public interest; and

· Provide a complete defence, i.e. if made out on the balance of probabilities, it would remove any criminality from the disclosure and so would protect the disclosing individual from criminal conviction.

6. In the absence of any such defence, the personal risk attendant on making a disclosure – even of serious wrongdoing or misconduct – is simply too high to expect individuals to serve as a safeguard of good governance. An individual who became aware of serious executive misconduct would have to be prepared to undergo a trial, a criminal conviction, and imprisonment if they were to reveal the wrongdoing they had discovered, with no statutory defence on which they could rely to prove to a prosecutor or jury that they had, in fact, acted in the public interest. As a matter of law, they would be a criminalised if they revealed what they knew. This degree of insulation of government from accountability is not a feature of a modern and healthy democracy. There must be safe, legal, and regulated routes through which misconduct can be identified and revealed. As the law currently stands, the government is insulated from scrutiny of even the most egregious misconduct by its agents.

7. A PID is particularly necessary because the current state of the law:

a. Lacks clarity and predictability.

b. Misses the opportunity to disincentivise harmful disclosures;

c. Is incompatible with freedom of expression protections.

The need for clarity and predictability in the law

8. In the absence of a statutory PID, juries and defendants have taken the law into their own hands. Public interest considerations enter OSA89 prosecutions by the back door: by a jury acting on "gut instinct" to acquit a defendant whose disclosure is in the public interest, despite the absence of any defence to support such an acquittal (in what is legally termed a ‘perverse acquittal’, such as in the case of Clive Ponting, who was acquitted by a jury despite the judge directing them that he had no defence in law); or by defendants introducing public interest factors in the assessment of "damage" caused by a disclosure or by running a defence of "necessity" (i.e. the disclosure was "necessary" because it was in the public interest, which was raised in the case of Katherine Gun, whose prosecution was ultimately discontinued before trial); or by individuals making disclosures to sympathetic MPs in the hope that they will make such material public under the protection of Parliamentary Privilege (which was used, for example, to expose Kim Philby as a double agent). The law should be more coherent than this: a specific defence should make appropriate provision for public interest to be taken into account. Reliance on the current status quo is unprincipled, and inherently riven with uncertainty and lack of legal clarity.

Deterrence/incentivisation

9. Associated with the benefit of legal clarity, we also consider that a clear and structured statutory defence would act as a deterrent to the making of harmful disclosures, and the current state of the law fails in this regard. At present, the law treats a reckless and indiscriminate ‘data dumper’ in exactly the same way as a conscientious person who makes a targeted and limited disclosure which they have carefully assessed to be in the public interest (i.e. neither of them benefit from any statutory public interest defence; both must simply take their chances with the jury). With the introduction of a PID, however, which would require consideration of factors such as the manner and extent of the disclosure, and any prior attempts to disclose through internal reporting mechanisms, these two categories of people would be treated differently. A PID would highlight to anyone considering making a disclosure the ways in which they may be able to demonstrate that the disclosure was in the public interest, and would thus disincentivise indiscriminate release of data.

10. Thus our proposed PID requires a jury to consider "whether the extent of the disclosure is no more than necessary for the purposes of exposing the relevant conduct" - such a proportionality requirement would act as a strong disincentive to reckless disclosers and underscores the unavailability of the defence to anyone who does not take steps to ensure their disclosure is "no more than necessary". It would thus make abundantly clear to the potential data dumper that they would inevitably be convicted. Accordingly, in our view, a statutory PID is likely to act as a deterrent to damaging disclosures, rather than an incentive.

11. We note that, in the specific context of protection of restricted material, data protection legislation was recently modernised to take account of evolving international standards: the Data Protection Act was enacted in 2018. Notably, the 2018 Act includes a public interest defence to what would otherwise be breaches of the Data Protection Act (see, for example, s.132 of the Data Protection Act 2018 which addresses disclosures of confidential information and provides for a public interest defence; and s.170 Data Protection Act 2018 which provides for a public interest defence to the offence of unlawfully obtaining personal data). A public interest defence also existed in some of the prior legislation (for example, s.55 of the Data Protection Act 1998, which was the precursor to s.170 Data Protection Act 2018). In none of these cases has there been any evidence to suggest an increase in the commission of, or incentivisation to commit, data protection offences because of the introduction of applicable public interest defences.

12. There is, similarly, no basis for expecting any surge in OSA offences if a public interest defence is introduced. On the contrary, as above, the heightened clarity in the law is, in our view, more likely to act as a deterrent and, irrespective of the precise content of a public interest defence in the OSAs, there is no evidence that the mere enactment of a public interest defence would signal a relaxation in the law and encourage individuals to make disclosures they would not otherwise have made.

Freedom of expression protections

  

13. In its September 2020 report on the Protection of Official Data, t he Law Commission concluded that the status quo under the OSA 89 (where there is no PID ) would likely breach of the UK’s obligation to protect freedom of expression and recommended the introduction of a general PID, leaving the drafting of such a PID to the legislature . In our view, were the compatibility of the OSA89 with the right to freedom of expression to be challenged in a domestic court now , i t is likely that the Government would lose. The Government would then be forced to introduce a PID in haste, rather than following considered debate during the passage of the NSB.

 

The scope and content of a public interest defence   

 

14. In our view, the NSB should introduce a PID requiring an individual to demonstrate that a disclosure was subjectively and objectively in the public interest . The subjective judgement is whether a person  believed  the disclosure to be in the public interest; the objective assessment is whether the disclosure was  actually  in the public interest.    The manner of disclosure would also be taken into account when assessing whether the disclosure was in the public interest.   

 

15. Our proposed defence would provide as follows:   

 

(1) In any proceedings for an offence under s.2 National Security Act or s.5 Official Secrets Act 1989 [as amended by the National Security Act, Sch. 11, para. 6] it shall be a defence (i) that the disclosure in question was in the public interest and (ii) the manner of the disclosure was also in the public interest.

(2) Whether a disclosure was in the public interest shall be determined having regard to:

a. the subject matter of the disclosure

b. the harm caused by the disclosure

c. any other relevant feature of the disclosure.

(3) Whether the manner of disclosure was in the public interest shall be determined having regard to:

a. Whether the disclosure has been made in good faith

b. If the disclosure relates to alleged misconduct, whether the individual reasonably believes that the information disclosed, and any allegation contained in it, are substantially true

c. Whether the disclosure is made for the purposes of personal gain

d. The availability of any other effective authorised procedures for making the disclosure and whether those procedures were exercised

e. Whether, in all the circumstances of the case, it is reasonable for the disclosure to have been made in the relevant manner.

 

16. The proposed draft defence is substantially based on an existing statutory public interest defence (introduced by the Employment Rights Act 1996 and the Public Interest Disclosure Act 1998) which protects a person making a relevant disclosure from any employment related sanction which would otherwise arise as a consequence of the disclosure. It has, in this context, been proven over more than 20 years to have been capable of reasonable operation within an existing legislative framework. The sensitivities in the official secrets context are obviously different from the employment law context but these sensitivities are specifically taken account of in the proposed defence.

17. The proposed PID places the burden of proving the defence on the individual seeking to benefit from it. As with all burdens placed on a defendant, the standard to which they would have to prove that their actions were in the public interest is "on the balance of probabilities", meaning they must persuade a jury that it is more likely than not that what they did was in the public interest. The inclusion of the objective element ensures that the defendant’s own state of mind of itself will not be sufficient to be acquitted.

Conclusion   

18. The defence we propose provides a clear route-map to a jury of the considerations they need to consider when a defendant contends that the disclosure in question was made in the public interest. The inclusion of such a defence in the new legislation will reduce the chance of a perverse acquittal when an individual is prosecuted, because (i) the jury will not be tempted to import their own safety-valve into the law since they will be clearly directed to apply the closely-circumscribed safety-valve provided by law; and (ii) the defence itself requires the jury to take into account the specific and objective factors that would be enshrined in the legislation, removing the scope for them to be led by their ‘instinct’ as to whether the individual should be convicted or acquitted. By setting out the specific factors that will support a disclosure being deemed to be in the public interest, the existence of a statutory PID will also disincentivise reckless data dumps, by underscoring the criminality of such action. Finally, by introducing considerations of proportionality, a PID would bring the UK into compliance with its freedom of expression obligations. A PID would also align the UK with other Five Eyes countries, which have forms of a PID in their security laws.

 

19. T here is thus a compelling and urgent rationale for introducing an amendment to the NS B to introduce the proposed PID to the OSA89   Such an amendment would be within the scope of the NSB; it has already been consulted on as part of the consultation leading to the NSB; and it would resolve the long-standing issue of the rights-compliance of OSA89. We encourage the Committee to propose the introduction of a PID.

20. We would welcome the opportunity for any further engagement with the C ommittee.

July 2022.


[1] The campaign has been covered by The Daily Telegraph, The Times, Times Radio, The Independent, iNews, Sunday Mirror and Sunday People. For example: https://www.thetimes.co.uk/article/law-must-protect-those-who-expose-governments-sins-rkq9nvvxn

[1] https://www.telegraph.co.uk/news/2020/12/30/lawyers-launch-drive-civil-servants-protected-leak- secrets-public/

[1] https://www.thetimes.co.uk/article/call-for-law-to-protect-civil-servants-who-leak-official-secrets- dzbjqpnlx

[1] https://inews.co.uk/opinion/government-sleaze-scandal-importance-transparency-protect- whistleblowers-1001567

[1]

[2] The team includes Harold Amoo, Alex Bailin QC, Ben Brandon, Katy Colton, Harry Eccles-Williams, Jessica Jones, Mark Leftly and Simon Petar

 

Prepared 20th July 2022