National Security Bill

Debate between Baroness Manningham-Buller and Lord Marks of Henley-on-Thames

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

As drafted, I fear that it would. Since we have had absolutely no indication that concessions will be made to all the amendments we discussed last week—I rather doubt that we will get them—it seems to me that investigative journalism will be seriously affected in a way that risks being a serious breach of Article 10. It might be saved by the qualification suggested by the noble Baroness, Lady Manningham-Buller, but I do not accept that that case is made out.

I entirely accept the noble Baroness’s point that the damage of publication cannot be recalled, but a balance must be struck which takes into account the interest in disclosure against the interest in secrecy. We emphasise the importance not just of free investigative journalism in a democratic society but of the control of wrongdoing. For my part, I cannot see anything in what the Minister said which comprehensively puts paid to the idea that there could be a cover-up of wrongdoing not possible for citizens to redress by disclosure without being subject to criminal proceedings under this Bill.

[Baroness Manningham-Buller (CB)]

I reassure the noble Lord that I do not believe that any of my former colleagues would want wrongdoing to be concealed. In balancing secrecy and the public interest, you have to analyse what secrecy is there for. Of course, secrecy can be used wrongly and attached to things which are not secret. However, I am talking about things where revealing the information could compromise the lives of individuals at that level. Making that judgment is pretty tough on a court, without knowing the full context. To defend against that, prosecutors would have to compound the damage. Of course, wrongdoing should never be covered up, but secrecy is not there just for the sake of it. It is there to protect lives and methods.

[Lord Marks of Henley-on-Thames (LD)]

I accept entirely that this is a very difficult issue and that the balance to be struck is very difficult. The noble Lord, Lord Coaker, mentioned the case of Clive Ponting, where there was undoubtedly government misinformation and wrongdoing. Clive Ponting was not a journalist; he was a former civil servant. In fact, he wrote books as well, including one on the truth about the “Belgrano”. Nevertheless, what he did was important. It is vital to our democracy that juries have the right—as one did in that case against the direction of the judge, because there was not a public interest defence—to say, “No, we will not convict because there has been wrongdoing.” A jury should not have to defy a judge and misapply the law because of the absence of such a defence to avoid covering up wrongdoing.

Of course I accept the point about drafting from the noble Lord, Lord Carlile, and that this amendment is not perfect. Indeed, it was he brought up the Ponting case at the very first instance in these proceedings. However, as the noble Lord, Lord Coaker, said, we cannot run away from drafting a public interest defence, if that is necessary, because the drafting is difficult. It is a different topic, but in Section 4 of the Defamation Act 2013 we have a defence of reasonable comment on a matter of public interest. I was on the pre-legislative scrutiny committee for that Act, and we considered very carefully how that would work. However, at that stage—although they are rarer now as a result of that Act—these were matters for determination by a jury, and a jury can determine such a public interest defence.