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| Justice and Security Bill [Lords]
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| [FIFTH AND SIXTH SITTINGS]
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| | Another Amendment (No. 55) proposed, in page 4, line 21, to leave out subsections (2) |
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| | ‘(1B) | The court may make such a declaration if it considers that the following two |
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| | (1C) | The first condition, in a case where the court is considering whether to make a |
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5 | | declaration on the application of the Secretary of State or of its own motion, is |
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| | (a) | a party to the proceedings (whether or not the Secretary of State) would |
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| | be required to disclose sensitive material in the course of the proceedings |
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| | to another person (whether or not another party to the proceedings), or |
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10 | | (b) | a party to the proceedings (whether or not the Secretary of State) would |
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| | be required to make such a disclosure were it not for one or more of the |
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| | (i) | the possibility of a claim for public interest immunity in relation |
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15 | | (ii) | the fact that there would be no requirement to disclose if the |
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| | person concerned chose not to rely on the material, |
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| | (iii) | section 17(1) of the Regulation of Investigatory Powers Act |
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| | 2000 (exclusion for intercept material), |
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| | (iv) | any other enactment that would prevent the party from disclosing |
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20 | | the material but would not do so if the proceedings were |
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| | proceedings in relation to which there was a declaration under |
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| | (1D) | The first condition, in a case where the court is considering whether to make a |
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| | declaration on the application of a party to the proceedings (other than the |
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25 | | Secretary of State), is that— |
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| | (a) | the applicant would be required to disclose sensitive material in the |
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| | course of the proceedings to another person (whether or not another party |
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| | (b) | the applicant would be required to make such a disclosure were it not for |
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30 | | one or more of the following— |
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| | (i) | the possibility of a claim for public interest immunity in relation |
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| | (ii) | the fact that there would be no requirement to disclose if the |
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| | applicant chose not to rely on the material, |
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35 | | (iii) | section 17(1) of the Regulation of Investigatory Powers Act |
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| | 2000 (exclusion for intercept material), |
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| | (iv) | any other enactment that would prevent the applicant from |
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| | disclosing the material but would not do so if the proceedings |
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| | were proceedings in relation to which there was a declaration |
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40 | | |
| | (1E) | The second condition is that it is in the interests of the fair and effective |
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| | administration of justice in the proceedings to make a declaration. |
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| | (1F) | The two conditions are met if the court considers that they are met in relation to |
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| | any material that would be required to be disclosed in the course of the |
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45 | | proceedings (and an application under subsection (1A)(a) need not be based on |
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| | all of the material that might meet the conditions). |
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| | (1G) | A declaration under this section must identify the party or parties to the |
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| | proceedings who would be required to disclose the sensitive material (“a relevant |
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| | person”).’.—(James Brokenshire) |
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| | As Amendments to James Brokenshire’s proposed Amendment (No. 55):— |
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| | Negatived on division (a) |
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| Line 1, leave out ‘(6)’ and insert (4)’. |
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| | Negatived on division (d) |
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| Line 2, leave out ‘two conditions are’ and insert ‘condition is’. |
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| Line 4, leave out ‘first’. |
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| | Negatived on division (b) |
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| Line 4, leave out from ‘condition’ to ‘is’ in line 5. |
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| Line 5, after ‘State’, insert ‘or a party’. |
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| Line 9, leave out from ‘proceedings),’ to end of line 46 and insert— |
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| | ‘(b) | such a disclosure would be damaging to the interests of national security, |
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| | (c) | the degree of harm to the interests of national security if the material is |
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| | disclosed would be likely to outweigh the public interest in the fair and |
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| | open administration of justice, and |
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| | (d) | a fair determination of the proceedings is not possible by any other |
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| | (1C) | In deciding whether a party to the proceedings would be required to disclose |
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| | material, the court must ignore— |
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| | (a) | section 17(1) of the Regulation of Investigatory Powers Act 2000 |
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| | (exclusion for intercept material), and |
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| | (b) | any other enactment that would prevent the applicant from disclosing the |
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| | material but would not do so if the proceedings were proceedings in |
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| | relation to which there was a declaration under this section. |
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| | (1D) | Before making an application under subsection (1), the Secretary of State must |
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| | consider whether to make, or advise another person to make, a claim for public |
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| | interest immunity in relation to the material on which the application would be |
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| | (1E) | Before making a declaration under subsection (1), the court must consider |
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| | whether a claim for public interest immunity could have been made in relation to |
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| Leave out lines 23 to 40. |
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| Clause 6, page 5, line 3, leave out ‘subsection (2)’ and insert ‘this section’. |
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| Clause 6, page 5, line 3, leave out from ‘must’ to end of line 5 and insert— |
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| | ‘(a) | ensure that the material is disclosed to a special advocate, |
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| | (b) | determine whether a claim for public interest immunity could have been |
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| | made in relation to any part of the material, and |
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| | (c) | order disclosure of any part of the material to which public interest |
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| | immunity would not apply. |
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| | (6A) | In making a determination pursuant to subsection 2(d), the court— |
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| | (a) | must not make such a determination solely by reason of the fact that such |
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| | material would be excluded by the operation of the doctrine of public |
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| | (b) | must only make such a determination if otherwise the proceedings would |
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| | be struck out pursuant to any rule of law; and |
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| | (c) | must only make such a determination if the court is satisfied that the |
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| | unfairness to the relevant person or the Secretary of State by not making |
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| | a declaration under this section would be substantially greater than the |
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| | unfairness to the other parties by making such a declaration.’. |
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| Clause 6, page 5, line 12, leave out ‘the Secretary of State’ and insert ‘a person’. |
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| Clause 6, page 5, line 15, after ‘section’, insert ‘or proceedings for or about such a |
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| Clause 6, page 5, line 18, leave out ‘the Secretary of State’ and insert ‘a person’. |
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| Clause 6, page 5, line 19, leave out ‘(1)’ and insert ‘(1A)(a)’. |
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| Clause 6, page 5, line 19, leave out ‘Secretary of State’s’ and insert ‘person’s’. |
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| Clause 6, page 5, line 20, leave out ‘all of the parties’ and insert ‘every other person |
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| entitled to make such an application in relation’. |
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| Clause 6, page 5, line 22, leave out ‘Secretary of State’ and insert ‘applicant’. |
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| Clause 6, page 5, line 22, leave out from ‘inform’ to first ‘of’ in line 23 and insert |
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| ‘every other such person’. |
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| Clause 6, page 5, line 32, at end add ‘except for proceedings which arise in |
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| connection with the claimant’s loss of liberty.’. |
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| Clause 6, page 5, line 32, at end add— |
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| | ‘“sensitive material” means material the disclosure of which would be |
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| | damaging to the interests of national security.’. |
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| | Clause, as amended, Agreed to on division. |
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| Clause 7, page 5, line 47, at end add ‘ and that damage outweighs the public interest |
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| in the fair and open administration of justice,’. |
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| Clause 7, page 6, line 2, leave out ‘consider requiring’ and insert ‘require’. |
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| Clause 7, page 6, line 4, at end insert ‘sufficient to enable the party to whom the |
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| summary is provided to give effective instructions on the undisclosed material to their |
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| legal representatives and special advocates.’. |
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| Clause 7, page 6, line 5, after ‘ensure’, insert ‘so far as it is possible to do so’. |
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| Clause 7, page 6, line 16, leave out ‘authorised’ and insert ‘required’. |
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| Clause 7, page 6, line 21, leave out ‘or’ and insert ‘and’. |
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| Clause 8, page 6, line 28, leave out ‘may’ and insert ‘must’. |
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| Clause 8, page 6, line 40, at end insert— |
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| | ‘(4A) | Rules of court relating to any relevant civil proceedings in relation to which there |
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| | is a declaration under section 6 proceedings must secure— |
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| | (a) | that, where a party is excluded from such an application, his interests are |
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| | represented by a special advocate appointed in advance of the court |
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| | hearing such application and, if the application is granted, for the |
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| | duration of the section 6 proceedings and related proceedings, |
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| | (b) | that the special advocate is afforded the opportunity to take instructions |
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| | from the party whose interests he is appointed to represent.’. |
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| Clause 10, page 7, line 16, leave out subsection (2) (b). |
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| Clause 10, page 7, line 27, at end insert— |
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| | ‘(2A) | Rules of court relating to section 6 proceedings must make provision— |
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| | (a) | requiring the court concerned to notify relevant representatives of the |
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| | media of proceedings in which an application for a declaration under |
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| | (b) | providing for any person notified under paragraph (a) to intervene in the |
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| | (c) | providing for a stay or sist of relevant civil proceedings to enable anyone |
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| | notified under paragraph (a) to consider whether to intervene in the |
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| | (d) | enabling any party to the proceedings or any intervener to apply to the |
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| | court concerned for a determination of whether there continues to be |
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| | justification for not giving full particulars of the reasons for decisions in |
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| | (e) | requiring the court concerned, on an application under paragraph (d), to |
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| | publish such of the reasons for decision as the court determines can no |
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| | longer be justifiably withheld.’. |
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| [Adjourned until Thursday at 11.30 am |
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