Written evidence from Janus Friis (NSB0006)

Introduction

The National Security Bill Committee is preparing to debate an amendment to the Bill, submitted by the Rt Hon Kevan Jones MP, which would introduce a statutory public interest defence to section 2 of the Bill and section 5 of the 1989 Official Secrets Act (OSA89)[1]. As drafted and proposed by the Government, the National Security Bill currently does not contain a public interest defence, and there is no existing public interest defence for any of the OSA89 disclosure offences. The Rt Hon Kevan Jones MP’s defence would substantially improve the human rights compatibility of the OSA89 and we support it. Indeed, for the reasons given by the Law Commission, our position is that the amendment should go further to apply to all of the disclosure offences in OSA89, so as to afford necessary legal protection to individuals who act in good conscience to hold the executive to account, without excusing those who act in a manner that is prejudicial to the safety or interests of the United Kingdom.

Janus Friis is a philanthropist. He has put together and funded a team of legal and political experts from Matrix Chambers, Mishcon de Reya, and Powerscourt Group to promote and campaign for the introduction of a public interest defence to OSA89 offences. We welcome this opportunity to explain why the inclusion of such a defence in the NSB is necessary to address the human rights concerns which otherwise arise.

As the Committee will know, the introduction of such a defence was included in the 33 recommendations of the Law Commission’s Protection of Official Data report, which was laid before Parliament on 1 September 2020:

“[W]e recommend that a statutory public interest defence should be created for civilians, including journalists, that they can rely upon in court. We consider that the defence should succeed only if the court finds that the disclosure was in fact in the public interest.”

The failure to adopt a defence would repeat and maintain the lack of fundamental rights protections in the OSA89. As presently drafted, 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 passage of the NSB through Parliament provides a long overdue opportunity to resolve this issue.

The following is a summary of a detailed briefing paper outlining our position.

Existing procedures – and their failings

The Law Commission report highlighted the need for a comprehensive overhaul of existing Official Secrets legislation, which dates back to the First World War and the Cold War. Existing legislation has attracted considerable criticism; the Intelligence & Security Committee described it as “not fit for purpose”.

The NSB is clearly intended to address at least some of the criticisms made of its outdated predecessors, by strengthening the protection of national security. As currently drafted, however, the NSB does not contain corresponding provisions that strengthen accountability. A public interest defence is essential to maintaining the balance of rights on which democracy depends.

At present, disclosure of information protected by OSA89 or disclosure by a person subject to OSA89 is typically a criminal offence. A public interest defence would remove criminal liability for such a disclosure if it was objectively in the public interest. While the Bill Committee is preparing to debate an amendment which would introduce a public interest defence to s.5 OSA89, for the human rights concerns associated with the OSA89 to be fully addressed, a statutory public interest defence ought to be introduced in respect of all of the disclosure offences in the OSA89.

That is because, as the Law Commission’s analysis found, the status quo under OSA89 (where there is no public interest defence) might be regarded as in breach of the UK’s international law obligations, in particular Article 10 freedom of expression rights under the European Convention on Human Rights. Although the Commission was cautious on this issue, we would go further. In the event that the compatibility of the OSA89 with the Convention right to freedom of expression were challenged in a court, it is likely that the Government would lose. At the very least, as the Law Commission report confirmed, a public interest defence would “increase the likelihood” that the UK would be compliant with Article 10 in all situations, and thus would ensure that future prosecutions were not derailed by the lack of a defence.

The scope and content of a public interest defence

A public interest defence could require an individual to demonstrate a subjective or objective element – or both. 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.

The Law Commission recommended that the defence should only take account of whether the disclosure (and the manner of disclosure) was objectively in the public interest, rendering motivation irrelevant. We are broadly supportive of the approach adopted.

If a public interest defence were inserted to the OSA89 by the NSB, in any case falling within the OSA89 the Crown Prosecution Service (CPS) would need to assess whether the disclosure satisfies the public interest test before deciding whether to bring a prosecution. If the CPS proceeds, the jury at trial would finally decide whether the disclosure satisfies the public interest defence, on the basis of legal directions given by the judge.

Although the Law Commission did not include a draft defence in its report, we consider that setting out a potential draft is helpful to demonstrate the factors on which it would be based and its robustness, both in terms of the protection of rights but also protection against unwarranted disclosures. The drafting of the defence is critical to ensure that it excludes disproportionate “data dump” disclosures, which would fail the proportionality assessment under Article 10. In that way, the substance of the defence would strike a carefully calibrated balance between making our legislation rights-compliant while continuing to protect national security.

Our proposed defence would apply to all offences arising under sections 1-6 OSA89, and thus builds on the amendment proposed by the Rt Hon Kevan Jones MP. We support that amendment, which would improve the position in the OSA89, but a wider amendment would remediate the human rights concerns arising from the OSA89. Our defence would provide as follows:

In any proceedings for an offence under s.1-6 Official Secrets Act 1989 [as amended by the NSB] 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.

In assessing whether the disclosure was in the public interest the following (non-exhaustive matters) shall be taken into account:

the subject matter of the disclosure;
the seriousness of the conduct exposed;

the harm caused by the disclosure;
any other relevant feature of the disclosure.

In assessing whether the manner of the disclosure was in the public interest the following (non-exhaustive matters) shall be taken into account:

whether the disclosure is made in good faith;
whether the extent of the disclosure is no more than reasonably necessary for the purposes of exposing the relevant conduct;

whether the individual reasonably believes that the information disclosed, and any allegation contained in it, are substantially true;
whether the disclosure is made for purposes of personal gain;
the availability of any other effective authorised procedure for making the disclosure and whether those procedures were exercised;
whether, in all the circumstances of the case, it is reasonable for the disclosure to have been made in the relevant manner.

Conclusion

The introduction of a statutory public interest defence by the NSB for disclosure offences in the OSA89 would thus introduce important safeguards, with clear statutory factors to be taken into account in assessing the claimed public interest. There is a strong rationale for introducing an amendment to the NSB. The Bill Committee are preparing to debate a similar defence and, if introduced, the defence we propose would resolve the long-standing issue of the rights-compliance of OSA89, avoiding litigation in any future prosecution which, in our view, the Government would lose.

We would welcome the opportunity for further discussions with the committee.

19/07/2022

[1] Clause 2 of the Bill creates an offence of unauthorised disclosure of trade secrets. Section 5 OSA89 criminalises the passing on of unauthorised disclosures and, if Clause 2 is passed, the section 5 offence would apply to the passing on of information protected by Clause 2: see Schedule 11 of the National Security Bill.