House of Commons Amendments

Session 2012 - 13
Internet Publications
Other Bills before Parliament

Public Bill Committee: 29 January 2013
34

Justice and Security Bill-[Lords], continued

(a)
a party to the proceedings (whether or not the Secretary of State) would

be required to disclose sensitive material in the course of the proceedings

to another person (whether or not another party to the proceedings), or
10
(b)
a party to the proceedings (whether or not the Secretary of State) would

be required to make such a disclosure were it not for one or more of the

following—

(i)
the possibility of a claim for public interest immunity in relation

to the material,
15
(ii)
the fact that there would be no requirement to disclose if the

person concerned chose not to rely on the material,

(iii)
section 17(1) of the Regulation of Investigatory Powers Act

2000 (exclusion for intercept material),

(iv)
any other enactment that would prevent the party from disclosing
20
the material but would not do so if the proceedings were

proceedings in relation to which there was a declaration under

this section.

(1D)
The first condition, in a case where the court is considering whether to make a

declaration on the application of a party to the proceedings (other than the
25
Secretary of State), is that—

(a)
the applicant would be required to disclose sensitive material in the

course of the proceedings to another person (whether or not another party

to the proceedings), or

(b)
the applicant would be required to make such a disclosure were it not for
30
one or more of the following—

(i)
the possibility of a claim for public interest immunity in relation

to the material,

(ii)
the fact that there would be no requirement to disclose if the

applicant chose not to rely on the material,
35
(iii)
section 17(1) of the Regulation of Investigatory Powers Act

2000 (exclusion for intercept material),

(iv)
any other enactment that would prevent the applicant from

disclosing the material but would not do so if the proceedings

were proceedings in relation to which there was a declaration
40
under this section.

(1E)
The second condition is that it is in the interests of the fair and effective

administration of justice in the proceedings to make a declaration.

(1F)
The two conditions are met if the court considers that they are met in relation to

any material that would be required to be disclosed in the course of the
45
proceedings (and an application under subsection (1A)(a) need not be based on

all of the material that might meet the conditions).

(1G)
A declaration under this section must identify the party or parties to the

proceedings who would be required to disclose the sensitive material (“a relevant

person”).’.

As Amendments to James Brokenshire’s proposed Amendment (No. 55):—

Dr Julian Huppert

Mike Crockart

(a)


Line  1,  leave out ‘(6)’ and insert (4)’.

Public Bill Committee: 29 January 2013
35

Justice and Security Bill-[Lords], continued

Dr Julian Huppert

Mike Crockart

(b)


Line  4,  leave out from ‘condition’ to ‘is’ in line 5.

Dr Julian Huppert

Mike Crockart

(c)


Leave out lines 23 to 40.

Dr Julian Huppert

Mike Crockart

52


Clause  6,  page  5,  line  3,  leave out ‘subsection (2)’ and insert ‘this section’.

Mr Andy Slaughter

68


Clause  6,  page  5,  line  3,  leave out from ‘must’ to end of line 4 and insert—

‘(a)
ensure that the material is disclosed to a special advocate,

(b)
determine whether a claim for public interest immunity could have been

made in relation to any part of the material, and

(c)
order disclosure of any part of the material to which public interest

immunity would not apply.

( )
In making a determination pursuant to subsection 2(d), the court—

(a)
must not make such a determination solely by reason of the fact that such

material would be excluded by the operation of the doctrine of public

interest immunity; and

(b)
must only make such a determination if otherwise the proceedings would

be struck out pursuant to any rule of law; and

(c)
must only make such a determination if the court is satisfied that the

unfairness to the relevant person or the Secretary of State by not making

a declaration under this section would be substantially greater than the

unfairness to the other parties by making such a declaration.’.

James Brokenshire

56


Clause  6,  page  5,  line  12,  leave out ‘the Secretary of State’ and insert ‘a person’.

James Brokenshire

57


Clause  6,  page  5,  line  15,  after ‘section’, insert ‘or proceedings for or about such a

declaration’.

James Brokenshire

58


Clause  6,  page  5,  line  18,  leave out ‘the Secretary of State’ and insert ‘a person’.

James Brokenshire

59


Clause  6,  page  5,  line  19,  leave out ‘(1)’ and insert ‘(1A)(a)’.

Public Bill Committee: 29 January 2013
36

Justice and Security Bill-[Lords], continued

James Brokenshire

60


Clause  6,  page  5,  line  19,  leave out ‘Secretary of State’s’ and insert ‘person’s’.

James Brokenshire

61


Clause  6,  page  5,  line  20,  leave out ‘all of the parties’ and insert ‘every other person

entitled to make such an application in relation’.

James Brokenshire

62


Clause  6,  page  5,  line  22,  leave out ‘Secretary of State’ and insert ‘applicant’.

James Brokenshire

63


Clause  6,  page  5,  line  22,  leave out from ‘inform’ to first ‘of’ in line 23 and insert

‘every other such person’.

James Brokenshire

64


Clause  6,  page  5,  line  32,  at end insert—

‘“sensitive material” means material the disclosure of which would be

damaging to the interests of national security.’.

Mr Andy Slaughter

69


Clause  6,  page  5,  line  32,  at end add ‘except for proceedings which arise in

connection with the claimant’s loss of liberty.’.

Mr Andy Slaughter

71


Clause  7,  page  5,  line  47,  at end add ‘ and that damage outweighs the public interest

in the fair and open administration of justice,’.

Dr Julian Huppert

Mike Crockart

1

Clause  7,  page  6,  line  2,  leave out ‘consider requiring’ and insert ‘require’.

Dr Julian Huppert

Mike Crockart

2

Clause  7,  page  6,  line  4,  at end insert ‘sufficient to enable the party to whom the

summary is provided to give effective instructions on the undisclosed material to their

legal representatives and special advocates.’.

Dr Julian Huppert

Mike Crockart

3

Clause  7,  page  6,  line  5,  after ‘ensure’, insert ‘so far as it is possible to do so’.

Public Bill Committee: 29 January 2013
37

Justice and Security Bill-[Lords], continued

Mr Andy Slaughter

72


Clause  7,  page  6,  line  16,  leave out ‘authorised’ and insert ‘required’.

Mr Andy Slaughter

73


Clause  7,  page  6,  line  21,  leave out ‘or’ and insert ‘and’.

Mr Andy Slaughhter

74


Clause  8,  page  6,  line  28,  leave out ‘may’ and insert ‘must’.

Mr Andy Slaughter

70


Clause  8,  page  6,  line  40,  at end add—

‘( )
Rules of court relating to any relevant civil proceedings in relation to which there

is a declaration under section 6 proceedings must secure—

(a)
that, where a party is excluded from such an application, his interests are

represented by a special advocate appointed in advance of the court

hearing such application and, if the application is granted, for the

duration of the section 6 proceedings and related proceedings,

(b)
that the special advovate is afforded the opportunity to take instructions

from the party whose interests he is appointed to represent.’.

Mr Andy Slaughter

75


Clause  10,  page  7,  line  16,  leave out subsection (b).

Mr Andy Slaughter

76


Clause  10,  page  7,  line  27,  at end add—

‘(2A)
Rules of court relating to section 6 proceedings must make provision—

(a)
requiring the court concerned to notify relevant representatives of the

media of proceedings in which an application for a declaration under

section 6 has been made,

(b)
providing for any person notified under paragraph (a) to intervene in the

proceedings,

(c)
providing for a stay or sist of relevant civil proceedings to enable anyone

notified under paragraph (a) to consider whether to intervene in the

proceedings,

(d)
enabling any party to the proceedings or any intervener to apply to the

court concerned for a determination of whether there continues to be

justification for not giving full particulars of the reasons for decisions in

the proceedings, and

Public Bill Committee: 29 January 2013
38

Justice and Security Bill-[Lords], continued

(e)
requiring the court concerned, on an application under paragraph (d), to

publish such of the reasons for decision as the court determines can no

longer be justifiably withheld.’.

James Brokenshire

65


Clause  10,  page  7,  line  31,  leave out subsections (4) and (5) and insert—

‘(4)
The following proceedings are to be treated as section 6 proceedings for the

purposes of sections 7 to 9, this section and section 11—

(a)
proceedings on, or in relation to, an application for a declaration under

section 6;

(b)
proceedings on, or in relation to, a decision of the court to make a

declaration under that section of its own motion.

(5)
In proceedings treated as section 6 proceedings by virtue of subsection (4), a

relevant person, for the purposes of sections 7 to 9, this section and section 11, is

a person who would be required to disclose sensitive material in the course of the

proceedings.’.

Mr Andy Slaughter

77


Clause  10,  page  7,  line  36,  at end insert—

‘(6)
Rules of court relating to section 6 proceedings must make provision—

(a)
to ensure that the burden of proof in section 6 proceedings shall be on the

relevant person and, where a party, the Secretary of State,

(b)
to ensure that, upon the Secretary of State making an application under

section 6(1), he shall be obliged to make full and frank unredacted

disclosure to the court and special advocate of all material and

information relevant to—

(i)
the issues in the action,

(ii)
the admissability of any evidence in section 6 procedings,

(iii)
the reliability of any such evidence,

(iv)
the existence of witnesses or lines of inquiry leading to the

discovery of relevant material, or

(v)
the appropriate court procedure for determining the issues in the

claim,

(c)
to ensure that any material which the special advocate represents may

have been procured by torture or by cruel, inhumane or degrading

treatment is ruled inadmissable unless the contrary is proved to a high

degree of conviction,

(d)
to ensure that opinion evidence is ruled inadmissible unless provided by

an independent expert,

(e)
to ensure that the court shall not without the consent of the special

advocate admit any statment constituting hearsay evidence without—

(i)
the source being identified to the court’s satisfaction,

(ii)
the court being satisfied that it is impracticable for the source to

provide live evidence to the court by oral evidence or video-link

and to be available for cross-examination, and

(iii)
the court being satisfied that the words of the source are reported

or recorded accurately and there is no risk of significant

misquotation through multiple hearsay or otherwise,

Public Bill Committee: 29 January 2013
39

Justice and Security Bill-[Lords], continued

(f)
to ensure that the costs of all the parties to any proceedings in which a

declaration under section 6 is made shall be paid by the Secretary of State

in any event,

(g)
to ensure that any judgement or decision of the court in any proceedings

in which a section 6 declaration is sought shall be deemed to be an

interlocutory judgement and any party excluded from such proceedings

may at any time apply to the court to set aside such judgement or decision

on the basis of relevant evidence not reasonably available to that party at

the time of the section 6 proceedings.’.

James Brokenshire

66


Clause  11,  page  8,  line  10,  leave out ‘(4)’ and insert ‘(1G)’.

James Brokenshire

67


Clause  11,  page  8,  line  14,  at end insert—

‘“sensitive material” has the meaning given by section 6(9),’.

James Brokenshire

49

Schedule  2,  page  17,  line  30,   at end insert—

‘Data Protection Act 1998 (c. 29)

1A
In section 63A of the Data Protection Act 1998 (application to Parliament)—

(a)
in subsection (2), after “Commons,” insert “other than where they are

determined by or on behalf of the Intelligence and Security Committee

of Parliament,”, and

(b)
in subsection (3), after “Lords,” insert “other than where they are

determined by or on behalf of the Intelligence and Security Committee

of Parliament,”.’.

James Brokenshire

50

Schedule  2,  page  18,  line  4,   at end insert—

‘Freedom of Information Act 2000 (c. 36)

3A  (1)
The Freedom of Information Act 2000 is amended as follows.

      (2)
In section 23 (information supplied by, or relating to, bodies dealing with

security matters), in subsection (3), at the end insert—

“(o)
the Intelligence and Security Committee of Parliament.”

      (3)
In Part 1 of Schedule 1 (Public Authorities; General)—

(a)
in paragraph 2, after paragraph (d) insert—

“(e)
information held by the Intelligence and Security

Committee of Parliament.”;

Public Bill Committee: 29 January 2013
40

Justice and Security Bill-[Lords], continued

(b)
in paragraph 3, after paragraph (d) insert—

“(e)
information held by the Intelligence and Security

Committee of Parliament.”’.

James Brokenshire

51

Schedule  3,  page  21,  line  22,  after ‘Committee’, insert ‘of Parliament’.

James Brokenshire

34

Clause  17,  page  14,  line  1,  leave out subsection (8).

New Clauses

Review and revocation of declaration under section 6

James Brokenshire

NC5


To move the following Clause:—

‘(1)
This section applies where a court seised of relevant civil proceedings has made

a declaration under section 6.

(2)
The court must keep the declaration under review, and may at any time revoke it

if it considers that the declaration is no longer in the interests of the fair and

effective administration of justice in the proceedings.

(3)
The court must undertake a formal review of the declaration once the pre-trial

disclosure exercise in the proceedings has been completed, and must revoke it if

it considers that the declaration is no longer in the interests of the fair and

effective administration of justice in the proceedings.

(4)
The court may revoke a declaration under subsection (2) or (3)—

(a)
on the application of—

(i)
the Secretary of State (whether or not the Secretary of State is a

party to the proceedings), or

(ii)
any party to the proceedings, or

(b)
of its own motion.

(5)
In deciding for the purposes of subsection (2) or (3) whether a declaration

continues to be in the interests of the fair and effective administration of justice

in the proceedings, the court must consider all of the material that has been put

before it in the course of the proceedings (and not just the material on which the

decision to make the declaration was based).

(6)
Rules of court must make provision—

(a)
as to how a formal review is to be conducted under subsection (3);



© Parliamentary copyright	Revised 29 January 2013