National Security Bill

WRITTEN EVIDENCE SUBMITTED ON BEHALF OF THE BBC (NSB09)

PUBLIC BILL COMMITTEE CALL FOR EVIDENCE

NATIONAL SECURITY BILL

Introduction and General Remarks

1. This is the BBC’s response to the Public Bill Committee’s call for evidence on the National Security Bill.

2. As a national and international news broadcaster the BBC is concerned about a number of provisions in the Bill and in particular the failure to adopt the Law Commission’s recommendation for the inclusion of a public interest defence. In summary:

2.1. The BBC is disappointed that the Bill does not include a specific public interest defence particularly in light of the recommendations of the Law Commission’s 2020 Protection of Official Data report [1] following its extensive consultation in 2017. The BBC also supports the submissions of the News Media Association ("NMA") dated 17 July 2022 in this regard.

2.2. It is disappointed that the Bill does not include an explicit defence of prior publication.

2.3. It believes the proposed maximum sentence (which are higher than those for similar offences under the Official Secrets Act 1989) carries the risk of creating a chilling effect on public interest journalism and freedom of expression.

2.4. The search powers in clause 20 appear to circumvent the protections given to journalistic material under the Police and Criminal Evidence Act 1984 ("PACE").

3. The BBC provided responses to both the Law Commission’s consultation on Protection of Official Data in 2017 and the Government’s Consultation on Legislation to Counter State Threats in 2021. Our position on key issues remains the same and we refer on occasion below to points we previously raised in the course of those consultations.

The failure to include a Public Interest Defence

4. At pp.7-11 of its response to the Law Commission’s consultation, the BBC set out at length the principled support to be found in domestic and European jurisprudence for such a defence. It also pointed to examples in domestic and foreign legislation of where a public interest test has operated successfully. As noted by the Law Commission in its 2020 report, the inclusion of a such a defence will also make it "considerably less likely that the UK will be found not to be compliant with Article 10." [2]

5. The BBC also strongly agrees with the Law Commission’s conclusion that a public interest defence is necessary even where the damage requirement for onward disclosures is retained. This is because, as the Law Commission notes (see para 4.45 of its report), the defence may operate even in cases where damage has resulted from a disclosure, making the damage requirement an insufficient alternative to a proper public interest defence. The Law Commission reached this conclusion following an extensive consultation process and consideration of detailed submissions from a variety of sources. It is therefore particularly disappointing that the Commission’s recommendations seem to have been ignored in the drafting of the Bill.

6. The BBC therefore supports the amendment tabled by Kevan Jones MP to introduce such a defence in relation to clause 2 of the National Security Bill and s.5 of the Official Secrets Act 1989 ("OSA 1989"). Furthermore we consider that the defence should be extended to sections 1-4 of the OSA 1989 as amended. In cases where the public interest is fulfilled, neither whistle blower nor journalist should be at risk of prosecution for revealing wrongdoing or reporting on matters which fulfil the requirements of the statutory defence.

7. As noted above, we also endorse the NMA’s submissions set out in section 2 of their response to the call for evidence.

A defence of prior publication

8. As the BBC noted in both its responses to the Law Commission consultation and its response to the Government’s 2021 Consultation on Legislation to Counter State Threats, there is a need for a statutory defence of prior publication. It also supports the Law Commission’s recommendation number 18 in its report, that: (i) "[i]t should be made explicit that prior publication is a factor that ought to be considered by prosecution agencies, courts, and juries when determining whether an unauthorised disclosure was damaging for the purposes of the sections 5 and 6 offences under the OSA 1989; and (ii) "[i]t should be made clear that it is not an offence for the purposes of sections 1(3) to 4 to communicate information that has been already communicated to the public or made available to the public with lawful authority." Plainly, criminalising publication of material that is already in the public domain constitutes an unacceptable violation of journalists’ (and the public’s) Article 10 ECHR rights.

9. The BBC therefore asks that the Committee considers the addition of such a defence to the proposed legislation.

Increase in maximum sentences

10. In the BBC’s response to the Law Commission’s consultation, it accepted that the current maximum sentences may not be sufficient in very exceptional serious cases (although they are sufficient in the vast majority of cases): see p.3 of the response. It also made clear that it did not think that such exceptional cases should be used as a rationale for re-setting sentences more widely.

11. The BBC reiterates its view that the current maximum sentence of two years under the OSA 1989 will be sufficient for the vast majority of cases regarding disclosure of protected information. It notes that a number of high-profile prosecutions in the past have, where successful, resulted in custodial sentences that fell comfortably within the current limits. [3]

12. The BBC maintains that greater sentences, particularly in relation to the offence contained within clause 2 of the Bill, are therefore unnecessary and could create a chilling effect for both whistle blowers and the media. At the very least, such significant penalties must be accompanied by a public interest defence to mitigate this potential interference with the media and the public’s rights under Article 10 of the ECHR.

Search Powers in Schedule II of the Bill

13. We share the NMA’s concerns that the provisions of Schedule II paragraph 10 give the police the power to inspect journalistic material without the protections which are built in to the Police and Criminal Evidence Act 1989 (which requires the police to obtain a court order in such circumstances). We strongly believe that these protections should be mirrored in this legislation and that the Bill should be amended to remove confidential journalistic material entirely from the scope of paragraph 10 by amending paragraph 10(2) to read: "An order under this paragraph giving the authority which may be given by a warrant under paragraph 7 does not authorise a constable to inspect, seize or retain confidential journalistic material". The provisions of paragraph 11 should be amended to require an application to a judge to take place before any such material is seized or inspected.

9 SEPTEMBER 2021