Peers seek public-interest clause for UK spy bill

Members of the House of Lords are seeking to force the UK government to accept additional safeguards in its national security bill with an amendment protecting press freedom attracting cross-party support.

A new clause, drafted by Lord Jonathan Marks KC, a barrister and Liberal Democrat peer, would introduce a public-interest defence for people charged with breaching official secrecy, helping a foreign power and some other offences under the legislation.

The bill is intended to tidy up and modernise the UK’s patchwork of official secrets legislation, some of which dates as far back as 1911.

Critics have argued that the legislation, as currently framed, could criminalise a wide range of whistleblowing and investigative reporting based on leaks of official documents.

The bill provides for a maximum sentence of 14 years’ imprisonment for assisting a foreign intelligence service, one of the offences that critics have argued could apply to legitimate investigative reporting.

Marks’ proposed change would soften the effect of those provisions by allowing anyone facing charges for such offences to argue that the activity was in the public interest.

The bill has reached its report stage in the Lords, the penultimate stage of its passage through the upper house. After it has passed the Lords, it will go back to the House of Commons for final approval.

Marks said he remained concerned that the bill would be too broad in its scope even with his amendment.

But he added: “A public-interest defence would actually answer quite a few of those concerns.”

The peer has won support for his amendment from Lord David Pannick KC, the widely respected crossbench — or non-party — peer, as well as Lord Edward Garnier KC, a Conservative former solicitor-general.

Marks is optimistic about winning support from a senior Labour peer.

Such cross-party support can be critical in winning votes in the House of Lords, where the Conservative party is not always assured of a majority.

Labour peers are expected to finalise their stance this week.

“Assuming Labour are on board, I am pretty confident of winning,” Marks said.

Pannick said he was supporting the amendment because he was concerned about the broad framing of new criminal offences under the bill.

“In particular, I am concerned about the position of journalists who publish public interest articles based on information supplied by a foreign state,” he said.

Garnier confirmed he was supporting the amendment, saying it was a sensible moderation of the legislation.

Marks has framed the amendment to make it more palatable to the government than a previous version he tabled earlier in the bill’s passage. He made the changes to address concerns raised by the security services about the potential impact of his previous proposal, Marks said.

“You have to strike a balance between protecting the security services and protecting government information and avoiding any threat to individual liberty,” he said.

If peers approve Marks’ amendment, attention will shift to whether enough Conservative MPs rebel in the Commons to prevent the government from using its majority to overturn the Lords’ vote.

Some Conservative MPs have already indicated they could support Marks’ amendment or a similar provision in the Commons.

Robert Buckland, the Conservative former justice secretary, said he would support Marks’ amendment if it reached the Commons, saying it struck the “right balance” between national security and freedom of speech.

Garnier said that, while it could be difficult for Marks’ amendment to reach the statute book, it might inspire the government to make similar changes to assuage concerns.

The Home Office, in charge of putting the legislation through parliament, declined to give a public position on Marks’ amendment.

“All bills are under constant review until they reach royal assent,” it said.

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