Recommendation 7

The offence of obtaining or disclosing protected information in clause 1 does not make sufficiently clear what information is considered to be protected for the Legislative Scrutiny: National Security Bill 51 purpose of this offence. As such, it creates an unacceptable level of legal uncertainty, raising concerns about compliance with the right to liberty and security, the right to a fair trial, and the right to freedom of expression as protected by Articles 5, 6 and 10 ECHR. To improve legal certainty and proportionality as to when this offence should apply, the Government should consider amending the offence to clarify that it only attaches to protected information that is (or that the defendant knows or reasonably ought to know should be) subject to a certain level of categorisation, such as “Secret” or “Top Secret”. Details as to what is included within the definition of protected information could be contained in a non-exhaustive indicative list or specified in a Statutory Instrument to improve clarity and legal certainty.