National Security Act 2023- Replacement of some of the former Official Secrets Acts with new criminal offences for obtaining and disclosing official information beneficial to a foreign power
Media Law Briefing from Professor Tim Crook UK Media Law Pocketbook 2nd Edition.
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Many of the Official Secrets Acts have been replaced with a new National Security Act which had been proceeding through the UK’s Westminster Parliament during 2022 and 2023. It received Royal Assent 11th July 2023.
Professional journalism and journalism industry bodies had been very concerned about the lack of safeguards and defences for public interest journalists’ sources and any criminal liability applying to journalists receiving official information and reporting it in the public interest.
40 media organisations throughout the world signed a letter in January 2023 protesting that the Bill contained broad and vague definitions ‘that we believe will, even if unintentionally, impact on legitimate whistleblowers and public interest journalism.’ See: https://newsmediauk.org/blog/2023/01/11/global-media-warns-of-serious-concerns-with-national-security-bill/
The UK’s News Media Association (NMA) continued to press its concerns during the House of Lords Report Stage of the Bill’s passage through Parliament. See: https://newsmediauk.org/topics/national-security-bill/
On February 23rd 2023 it remained cautious in its reception of government proposals to table amendments to the National Security Bill which sought to address concerns around press freedom. See: https://newsmediauk.org/blog/2023/02/23/nma-comments-on-amendments-to-national-security-bill/
By way of background, journalism history in the 20th century recognises that broad and vaguely defined criminal offences legislated to tackle espionage without any public interest defences passed in 1911, 1920, 1939 and 1989 led to clumsy and oppressive prosecution of journalists and their sources over stories which were merely embarrassing politically to executive government and did not present any material risk to the interests of national security.
See the House of Commons Briefing Paper The Official Secrets Acts and Official Secrecy https://researchbriefings.files.parliament.uk/documents/CBP-7422/CBP-7422.pdf
See: ‘Amendments laid to strengthen National Security Bill The government has put forward its proposed amendments to the National Security Bill ahead of the Lord’s report stage.’ https://www.gov.uk/government/news/amendments-laid-to-strengthen-national-security-bill
The background to the reform discussion process is that the Law Commission did recommend that new legislation provided a public interest defence for civilians, including journalists covering circumstances where the court finds that the disclosure, and manner of disclosure, was in the public interest.
This recommendation was not present in the Bill tabled by the government and it can be argued is not reflected in proposed amendments.
The Home Office had been advancing a ‘Journalistic freedoms: National Security Bill factsheet- Aims of the bill and the Law Commission’s recommendations’ which it updated when it became an Act of Parliament in July 2023. See: https://www.gov.uk/government/publications/national-security-bill-factsheets/journalistic-freedoms-national-security-bill-factsheet
The Home Office argued: ‘The offences in the National Security Act target harmful activity by states, not leaks, whistleblowing activity or public interest journalism. This is a sentiment echoed by the Law Commission in oral evidence to the Public Bill Committee who were clear that in their view the requirements of the offences take them outside of the realm of leaks and into the realm of espionage.’
The Home Office explained: ‘The bill does not target leaks or whistleblowing activity and it does not replace the Official Secrets Act 1989 (OSA 1989) – a distinct piece of legislation which deals with unauthorised disclosures by those within government of specific categories of national security information, as well as onward disclosure and failing to safeguard the information. It is not focused at hostile activity from foreign states.’
The Home Office said the Law Commission did not recommend a public interest defence for journalists in respect of the offences created in the new act because ‘During their oral evidence to the committee for this bill in the other place [meaning House of Lords], the LC were clear that, in their view, the requirements of the offences take them outside of the realm of leaks and into the realm of espionage.’
The government said they did not reform the OSA 1989 because: ‘Given its complexity, we were concerned that reform of OSA 1989 would distract from the government’s package of measures in this bill to counter state threats and delay us from providing law enforcement and the intelligence agencies with the tools that they need now to directly tackle these threats.’
The briefing asserted the act provides safeguards for confidential journalistic material when police use the search and seizure powers in the legislation.
The government further argues it changed the phrasing of the threshold of knowledge on the part of potential offenders to ensure that legitimate journalistic activity is out of scope.
Journalists ‘would not be caught if they acted unwittingly or where they did not have information from which it could be concluded that they should have known’ they were handling protected information ‘prejudicial to the safety or interests of the United Kingdom.’
The Sun newspaper’s investigative journalist Harry Cole wrote: ‘Home Office official joked I should be jailed for one of my scoops – under new law criminalising journalists, I could be.’ 24th February 2023 See: https://www.thesun.co.uk/news/21508975/new-law-jailing-journalists-harry-cole/
The National Security Act as it is on receiving Royal Assent 11th July 2023:
Explanatory notes on the Act prepared by the Home Office”
Section 38 of the Act becomes the relevant statutory power to enable courts to exclude media and public from court proceedings in the interests of national security.
The government issued the following media release 11th July 2023 ‘National Security Bill becomes law. On 11 July, the National Security Bill became law after being passed by both Houses of Parliament and securing Royal Assent.’
Security Minister Tom Tugendhat said: ‘The National Security Act overhauls our outdated espionage laws and will provide our law enforcement and intelligence agencies with new and updated tools to deter, detect and disrupt modern-day state threats. For the first time there is an offence of foreign interference, meaning it will now be illegal to engage in conduct that interferes with fundamental rights, such as voting and freedom of speech, that are essential to the UK’s democracy.
And the Director General of MI5, Ken McCallum said: ‘The National Security Act is a game changing update to our powers. We now have a modern set of laws to tackle today’s threats.’
The Home Office also issued a ‘National Security Act Factsheet.’
And the Law Commission seemed to be pleased with how the Government and Parliament had responded to its recommendations when scrutinising and amending the legislation. See: ‘Recommendations on espionage offences implemented in National Security Act 2023.’
It said they had made recommendations to ensure ‘the law governing espionage is fit to counter threats to the UK’s national security from foreign powers, and that only sufficiently culpable conduct is criminalised. These recommendations followed extensive consultation with stakeholders, such as the News Media Association and the UK Intelligence Community, as well as assessment of classified evidence.’
However, history has shown that legislation passed by Parliament to deal with espionage and national security threats does has a tendency to catch journalists and their sources where disclosure of information classified as secret is politically embarrassing to the government of the day and carries the weight of public interest.
Featured Image: Ministry of Defence Main Building. London, UK. Image by ArildV CC BY-SA 3.0 File: Ministry of Defence Main Building Mars 2014.jpg Created: 3 March 2014, Location: 51° 30′ 14.69″ N, 0° 7′ 29.58″ W
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The second edition of The UK Media Law Pocketbook presents updated and extended practical guidance on everyday legal issues for working journalists and media professionals. This book covers traditional print and broadcast as well as digital multimedia, such as blogging and instant messaging, with clear explanations of new legal cases, legislation and regulation, and new chapters on freedom of information and social media law. Links to seven new online chapters allow readers to access all the most up-to-date laws and guidance around data protection, covering inquests, courts-martial, public inquiries, family courts, local government, and the media law of the Channel Islands and the Isle of Man. Tim Crook critically explores emerging global issues and proposals for reform with concise summaries of recent cases illustrating media law in action, as well as tips on pitfalls to avoid.
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