My Lords, I rise to speak primarily to my diffident amendment, which is none the less an important one. I agree with much of what the noble Lord, Lord Marks, said and what he seeks to achieve in his amendment. As he said, it is based very much on what Kevan Jones MP said on new Clause 5 in the debate in the other place.
I am going to leave to one side the notes I had written for this, because it is such an important debate and discussion. The amendment I put down was just a probing amendment to see that it was debated, but now I can see the sense of it, because in the remaining time for the Bill we will not have the opportunity for hours of debate about what a public interest defence should or should not be. But it is not going to go away.
As the noble Baroness, Lady Manningham-Buller, eloquently told us—supported by the noble Lord, Lord Faulks, and others—there is a view that a public interest defence, if you are not careful, will compromise national security in the ways that were outlined. We cannot ignore that, but neither can we ignore the fact that many respected organisations fundamentally believe that the Bill as drafted will both cause a problem with respect to those who wish to act as investigative journalists, which none of us would wish to see compromised—I know that this will be debated later on the amendment on whistleblowing from the noble Baroness, Lady Kramer —and prevent somebody who works in a service exposing
serious wrongdoing. The wrongdoing going on might be so serious that, on reflection, we would be pleased that they had brought it to the public’s attention. There is a real conflict here between those two points of view.
Nobody wishes to compromise national security or to curtail the opportunity for people to reveal things which are in the public’s interest. But having put a probing amendment down, it seems that my amendment is one way to try to wrestle with this problem in slower time, while we reflect on how we bring all this together. As I say, we cannot just dismiss all the institutions and organisations, including very respected people, who want a public interest defence. They include the Law Commission and many others such as Mishcon de Reya, who have sent us all a really informative argument for why there should be a public interest defence. They have pointed to various cases, some historic and some not so historic, to give examples of where a public interest defence may have helped.
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I am sure that noble Lords will have seen those and can think of many in the past. People will have different views about whether they were right or wrong—whether Katharine Gun was right or whether the Clive Ponting case highlighted anything. The 2018 Intelligence and Security Committee’s review of what happened between 2000 and 2004 said that, had there been a public interest defence, that might have been exposed earlier. That point may be wrong, but the point I am trying to make is that we should not shy away from difficult debates and discussions when we are trying to put legislation together.
I have put my notes down, although I will come back to one bit of them in a minute, because that is the dilemma facing us. I think the Government themselves recognise that dilemma, hence the point made by the noble Lord, Lord Marks: that Tom Tugendhat MP said that the Government were reflecting on it. I try to inform the comments that I make from the Dispatch Box, because that is the way I am, so I looked at what the Government themselves were saying. In their response updated on 12 July 2022, the Government said this about public interest. I say an excuse me to the Committee for reading it but I need to do that and make a couple of comments afterwards; it is not too long.
The Government’s own explanation said:
“To enable wrongdoing to be exposed safely while ensuring that the Act remains workable to protect UK national security, the focus should be on making sure that individuals can make disclosures in a safe way, for instance through proper, protected routes for making an authorised disclosure. The Government is committed to ensuring that these routes are clear and accessible to individuals across government. Therefore, the government is updating guidance for government departments and bodies to ensure that there are safe and effective whistle-blowing routes available to all current and former staff and contractors who may wish to raise a concern.”
Is that relevant to what we are discussing? Is it irrelevant and has nothing to do with it? If they are updating guidance, who is being told about that update? If every department is doing it, what does that mean? Is it every department and agency of government, and what is the process for updating that guidance? Are we, as the legislature in the other place and here, going
to get sight of that guidance and, if it is going on, why is it not informing this Bill as it goes through? If the Government are trying to create safe and secure routes for individuals past and present to whistleblow or tell what has happened, what are those routes and what guidance is being updated?
I am not sure that the Minister will be able to respond to that, but if it is relevant, which I believe it is, then there should be something to inform this Committee of what that response means with respect to these measures. As I say, I have put down my notes because there is nothing wrong with what the noble Lord, Lord Carlile, and the noble Baroness, Lady Manningham-Buller, have said—or indeed what the noble Lords, Lord Marks and Lord Faulks, said. Nobody is wrong, but how do we resolve that conflict within what all of us want, which is the maintenance of investigative journalism and the ability of people to tell where there is serious wrongdoing, but in a way that does not impact on the national security of our nation, which we all support?
This dilemma cannot just be put in the “too difficult” pile; it cannot be put somewhere we can all reflect on it “at some point”. We somehow have to find a way to try to reconcile this conflict which gives certainty to the legislature, while ensuring that all of us can maintain the confidence we have in our democracy that serious wrongdoing can be exposed and simultaneously protecting national security—that should not be beyond us. That is why the amendment tabled by the noble Lord, Lord Marks, although not correct in every detail, is important, and why my amendment has been brought forward: to try to tease out, from the Government and this Chamber, people’s views on how we take this forward in a way which commands general support.