by Aidan Cameron (He/Him)
The UK Government’s National Security Bill, first introduced last summer, is set to become law early this year, with the bill having passed through the House of Commons and currently being discussed at the committee stage within the House of Lords. The government has argued the bill is necessary due to current espionage laws being “outdated”, as they were last updated in 1989. Further changes seem limited at this point, with the bill most likely to pass through the House of Lords and receive Royal Assent, before turning into law. Whilst it has the stated aim of protecting foreign threats to the UK, there are a number of issues that have been raised with the bill since its introduction.
One such concern centres on a change to the 2007 Serious Crime Act, which made it an offence to do anything in the UK to encourage or assist a crime overseas, such as aiding torture interrogations or unlawful assassinations. Clause 23 – which ensures protection for intelligence community members and armed forces operating overseas – serves to alter this act, by ensuring immunity for ministers and spies who may been engaging in such activity. The government’s response is that responsibility will still be held at the organisational level; though this is at least a positive step, in completely removing blame from individual operatives there is serious concern it could allow them to get away with criminal acts, and arguably even encourage them to do so.
A big issue with the bill at large is the vagueness of its wording. Terms like ‘Directed by’, ‘Foreign Principle’ and ‘Political Influencing’ are not clearly defined in the bill, and hence could be used against a variety of actions at the discretion of authorities. Granting such power is contentious and seems unfair if individuals are punished over laws that are not specific. For instance, the bill describes a “trade secret” as being “any information, document or other article which is not
generally known by, or available to, people with knowledge of or expertise in the field which it relates to”. This wording is extremely broad, to the extent it could almost be interpreted as including any material which has not been published by an authority. Such a requirement to defer to authority goes against the principles of journalism, hence it is unsurprising a range of journalism groups, from across the political spectrum, have expressed opposition to the bill.
The primary goal of the bill is the crackdown on potential for what it claims to be ‘foreign influence’ in the UK. It bans the use of leaked information for organisations and individuals funded by foreign sources, or who collaborate with them in obtaining the information. The outlawing of any type of collusion with what is deemed a ‘foreign actor’ could create a number of situations where innocent parties are punished. As noted by the charity Bond, an NGO may obtain funding from an international organisation such as USAID to support work in a range of areas, such as food security and climate change. The same organisation may also advocate policies in their respective area of focus. The bill could arguably deem this as collaboration with foreign sources. Hence if they were to share classified information with the source, or use classified information from the source, that could be deemed a criminal offense.
Punishment in this area is particularly severe. OpenDemocracy highlights that those in receipt of information or documents deemed to benefit foreign powers face the harshest penalties – up to a maximum of life imprisonment. Although ministers, when questioned, claimed that the measures in question do not aim to target journalists, such protections have not been written into the legislation. The decision to prosecute would ultimately come down to the attorney general of the day – this can lead to a variety of potential outcomes, but the fact that such prosecutions are even on the table is extremely alarming.
The notion of punishing those undermining government policy also raises further concerns. As the group Campaign for Freedom of Expression claimed year, if the government were to endorse “an immediate expansion of fracking or the building of coal-fired or nuclear power plants, the use of leaked information which could undermine that policy could be a criminal offence under the Bill”. It appears the bill can classify any current government policy, whatever it may be, as being in the ‘public interest’, and thus crack down on opposition to it. The National Security Bill can hence serve to crackdown on individuals or groups expressing legitimate concerns about government policy, a worrying notion in any democratic nation.
Public Interest Defence
The primary change organisations critical of the bill have pushed for is the inclusion of a ‘public interest defence’. This would prevent journalists who engaged in the distribution of restricted information from potential imprisonment. Certain Backbench MPs had called for a public interest defence to be incorporated into the Bill, but it has not as of yet. A public interest defence would also provide journalists who had published undisclosed government information a framework to use as a defence in court, were they to publish. The lack of public interest defence is therefore worrying for a variety of reasons, and means the bill fails to account for the necessity of the information in question, and the fact that the publisher believed it to be in the public interest.
Enhanced police powers are another key area where the bill is seen to infringe upon civil liberties. Presently, under the Police and Criminal Evidence Act (PACE), police forces are required to apply to a court to inspect “special procedure material”, such as journalists’ electronic files and notebooks. Press Gazette discusses how the bill in its current form would enable police to authorise search warrants and inspection, but not seizure, of journalistic material where they have “reasonable grounds for believing that the case is one of great emergency and that immediate action is necessary”. This empowerment highlights the necessity of a public interest clause, which should help put a stop to this type of crackdown on investigative journalism.
The State Response
The government has repeatedly claimed the bill is not an attempt to crack down on whistleblowing and journalism, with the Home Office writing in a statement to Press Gazette that “offences in the National Security Bill target harmful activity by states, not leaks or whistleblowing activity”. Hence, they have proposed there is no need for a public defence clause. However, clauses within the bill seem to undeniably have the potential to empower and enable such crackdowns, with journalism groups, various campaign groups, news organisations and certain legal experts backing this assessment. Analysis of the various clauses within the bill only further strengthen the argument that it has the potential to crack down on freedom of expression and empower authorities in a range of potentially harmful ways.