House of Commons Amendments

Session 2012 - 13
Internet Publications
Other Bills before Parliament

51

House of Commons

Thursday 31 January 2013

Public Bill Committee

New Amendments handed in are marked thus

Amendments which will comply with the required notice period at their next appearance

Justice and Security Bill [Lords]

Note

The Amendments have been arranged in accordance with the Order of the

Committee [29 January 2013].

Schedule 1.

Another Amendment (No. 21) proposed, in page 16, to leave out from ‘ISC’ in line 30

to end of line 38.—(Diana Johnson).

Question proposed, That the Amendment be made.

James Brokenshire

43

Schedule  1,  page  16,  line  25,  leave out ‘Minister’ and insert ‘Secretary of State’.

James Brokenshire

44

Schedule  1,  page  16,  line  31,  leave out ‘Minister’ and insert ‘Secretary of State’.

James Brokenshire

45

Schedule  1,  page  16,  line  33,  leave out ‘Minister’ and insert ‘Secretary of State’.

Dr Julian Lewis

28

Schedule  1,  page  16,  line  34,  at end insert ‘except that the ISC may have access to

information that is sub judice or that relates to papers of a previous administration.’.

Public Bill Committee: 31 January 2013
52

Justice and Security Bill-[Lords], continued

James Brokenshire

46

Schedule  1,  page  16,  line  36,  leave out ‘Minister’ and insert ‘Secretary of State’.

Diana Johnson

17

Schedule  1,  page  16,  line  44,  leave out ‘Minister of the Crown’ and insert

‘Secretary of State’.

Diana Johnson

18

Schedule  1,  page  16,  line  46,  leave out ‘Minister of the Crown’ and insert

‘Secretary of State’.

Diana Johnson

19

Schedule  1,  page  17,  line  1,  leave out first ‘Minister of the Crown’ and insert

‘Secretary of State’.

Diana Johnson

20

Schedule  1,  page  17,  line  1,  leave out second ‘Minister of the Crown’ and insert

‘Secretary of State’.

Diana Johnson

11

Schedule  1,  page  17,  line  5,  leave out ‘paragraph 3(3)(a)’ and insert ‘paragraphs

2(6) and 3(3)(a)’.

James Brokenshire

47

Schedule  1,  page  17,  line  20,  at end insert—

‘Publication of information received in private

5    (1)
This paragraph applies to information received by the ISC in private in

connection with the exercise of its functions.

      (2)
The ISC—

(a)
may only publish the information by way of a report under section 3,

and

(b)
must not disclose the information to any person if the ISC considers

that there is a risk that the person will publish it.

      (3)
The restrictions on publication and disclosure of information in sub-paragraph

(2) do not apply if—

(a)
publication or disclosure is necessary for the ISC to comply with any

enactment or rule of law, or

(b)
the information has on an earlier occasion been disclosed to the public,

in circumstances which do not contravene—

(i)
sub-paragraph (2), or

(ii)
any other enactment or rule of law prohibiting or restricting

the disclosure of information.’.

Public Bill Committee: 31 January 2013
53

Justice and Security Bill-[Lords], continued

James Brokenshire

48

Schedule  1,  page  17,  line  20,  at end insert—

‘Protection for witnesses

6
Evidence given by a person who is a witness before the ISC may not be used

against the person in any criminal, civil or disciplinary proceedings, unless the

evidence was given in bad faith.’.

Diana Johnson

12

Clause  2,  page  2,  line  8,  at end insert—

‘(1A)
The ISC shall consider the proposed appointment of each of the following,

including by questioning the prospective appointee at a meeting of the ISC—

(a)
the Director-General of the Security Service,

(b)
the Chief of the Secret Intelligence Service,

(c)
the Director of the Government Communications Headquarters, and

(d)
such other persons as the Prime Minister may direct.’.

Diana Johnson

22

Clause  2,  page  2,  line  9,  leave out from ‘oversee’ to end of line 11 and insert ‘any

part of a government department, or any part of Her Majesty’s forces, which is engaged

in intelligence or security activities’.

James Brokenshire

32

Clause  2,  page  2,  line  13,  leave out from ‘as’ to end of line 19 and insert ‘—

(a)
the ISC and the Prime Minister are satisfied that the matter—

(i)
is not part of any ongoing intelligence or security operation, and

(ii)
is of significant national interest,
5
(b)
the Prime Minister has asked the ISC to consider the matter, or

(c)
the ISC’s consideration of the matter is limited to the consideration of

information provided voluntarily to the ISC by—

(i)
the Security Service,

(ii)
the Secret Intelligence Service,
10
(iii)
the Government Communications Headquarters, or

(iv)
a government department.

(3A)
The ISC’s consideration of a particular operational matter under subsection (3)(a)

or (b) must, in the opinion of the ISC and the Prime Minister, be consistent with

any principles set out in, or other provision made by, a memorandum of
15
understanding.’.

Public Bill Committee: 31 January 2013
54

Justice and Security Bill-[Lords], continued

As an Amendment to James Brokenshire’s proposed Amendment (No. 32):—

Dr Julian Lewis

(a)

Line  7,  leave out ‘voluntarily’.

Diana Johnson

23

Clause  2,  page  2,  line  19,  at end insert—

‘(3A)
The ISC may, notwithstanding subsection (3), consider any particular operational

matter if the relevant Minister of the Crown agrees to the consideration of the

matter.’.

James Brokenshire

33

Clause  2,  page  2,  line  22,  leave out ‘(3)’ and insert ‘(3A)’.

Diana Johnson

24

Clause  2,  page  2,  line  26,  leave out from ‘(5)’ to end of line 27 and add—


‘A memorandum of understanding shall not take effect under this section

unless a draft has been laid before, and approved by a resolution of, each House

of Parliament.’.

Diana Johnson

26

Clause  3,  page  2,  line  36,  leave out from ‘matter’ to end of line 39, and insert

‘contains—

(a)
sensitive information (as defined in Schedule 1, paragraph 4), or

(b)
information which, in the interests of national security, should not be

disclosed.’.

Diana Johnson

27

Clause  3,  page  3,  line  3,  at end add—

‘(8)
Where the ISC makes a report under subsection (7), the Prime Minister or

Secretary of State must provide a response to the ISC within three months of

receiving the report.’.

James Brokenshire

53

Clause  6,  page  4,  line  18,  leave out from ‘may’ to ‘make’ in line 19.

Public Bill Committee: 31 January 2013
55

Justice and Security Bill-[Lords], continued

James Brokenshire

54

Clause  6,  page  4,  line  20,  at end insert—

‘(1A)
The court may make such a declaration—

(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.’.

James Brokenshire

55

Clause  6,  page  4,  line  21,  leave out subsections (2) to (6) and insert—

‘(1B)
The court may make such a declaration if it considers that the following two

conditions are met.

(1C)
The first condition, in a case where the court is considering whether to make a
5
declaration on the application of the Secretary of State or of its own motion, is

that—

(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.

Public Bill Committee: 31 January 2013
56

Justice and Security Bill-[Lords], continued

(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)’.

Mr Andy Slaughter

(d)


Line  2,  leave out ‘two conditions are’ and insert ‘condition is’.

Mr Andy Slaughter

(e)


Line  4,  leave out ‘first’.

Dr Julian Huppert

Mike Crockart

(b)

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

Mr Andy Slaughter

(f)


Line  5,  after ‘State’, insert ‘or a party’.

Mr Andy Slaughter

(g)


Line  9,  leave out from ‘proceedings),’ to end of line 46 and insert—

‘(b)
such a disclosure would be damaging to the interests of national security,

(c)
the degree of harm to the interests of national security if the material is

disclosed would be likely to outweigh the public interest in the fair and

open administration of justice, and

(d)
a fair determination of the proceedings is not possible by any other

means.

(1C)
In deciding whether a party to the proceedings would be required to disclose

material, the court must ignore—

(a)
section 17(1) of the Regulation of Investigatory Powers Act 2000

(exclusion for intercept material), and

(b)
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 under this section.

(1D)
Before making an application under subsection (1), the Secretary of State must

consider whether to make, or advise another person to make, a claim for public

Public Bill Committee: 31 January 2013
57

Justice and Security Bill-[Lords], continued

interest immunity in relation to the material on which the application would be

based.

(1E)
Before making a declaration under subsection (1), the court must consider

whether a claim for public interest immunity could have been made in relation to

the material.’.

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 5 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.

(6A)
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)’.



© Parliamentary copyright	Revised 31 January 2013