Justice and Security Bill (HC Bill 134)

Part 1 Oversight of intelligence and security activities

Oversight by the Intelligence and Security Committee

1 The Intelligence and Security Committee

(1) 5There is to be a body known as the Intelligence and Security Committee of
Parliament (in this Part referred to as “the ISC”).

(2) The ISC is to consist of nine members who are to be drawn both from the
members of the House of Commons and from the members of the House of
Lords.

(3) 10Each member of the ISC is to be appointed by the House of Parliament from
which the member is to be drawn.

(4) A person is not eligible to become a member of the ISC unless the person—

(a) is nominated for membership by the Prime Minister, and

(b) is not a Minister of the Crown.

(5) Before deciding whether to nominate a person for membership, the Prime
Minister must consult the Leader of the Opposition.

(6) A member of the ISC is to be the Chair of the ISC chosen by its members.

(7) Schedule 1 (which makes further provision about the ISC) has effect.

2 5Main functions of the ISC

(1) The ISC may examine or otherwise oversee the expenditure, administration,
policy and operations of—

(a) the Security Service,

(b) the Secret Intelligence Service, and

(c) 10the Government Communications Headquarters.

(2) The ISC may examine or otherwise oversee such other activities of Her
Majesty’s Government in relation to intelligence or security matters as are set
out in a memorandum of understanding.

(3) The ISC may, by virtue of subsection (1) or (2), consider any particular
15operational matter but only so far as—

(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,

(b) the Prime Minister has asked the ISC to consider the matter, or

(c) 20the 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,

(iii) the Government Communications Headquarters, or

(iv) 25a government department.

(4) 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 understanding.

(5) 30A memorandum of understanding under this section—

(a) may include other provision about the ISC or its functions which is not
of the kind envisaged in subsection (2) or (4),

(b) must be agreed between the Prime Minister and the ISC, and

(c) may be altered (or replaced with another memorandum) with the
35agreement of the Prime Minister and the ISC.

(6) The ISC must publish a memorandum of understanding under this section and
lay a copy of it before Parliament.

3 Reports of the ISC

(1) The ISC must make an annual report to Parliament on the discharge of its
40functions.

(2) The ISC may make such other reports to Parliament as it considers appropriate
concerning any aspect of its functions.

(3) Before making a report to Parliament, the ISC must send it to the Prime
Minister.

(4) The ISC must exclude any matter from any report to Parliament if the Prime
Minister, after consultation with the ISC, considers that the matter would be
5prejudicial to the continued discharge of the functions of the Security Service,
the Secret Intelligence Service, the Government Communications
Headquarters or any person carrying out activities falling within section 2(2).

(5) A report by the ISC to Parliament must contain a statement as to whether any
matter has been excluded from the report by virtue of subsection (4).

(6) 10The ISC must lay before Parliament any report made by it to Parliament.

(7) The ISC may make a report to the Prime Minister in relation to matters which
would be excluded by virtue of subsection (4) if the report were made to
Parliament.

4 Sections 1 to 3: interpretation

15In sections 1 to 3 and Schedule 1—

• “government department” means a department of Her Majesty’s
  Government but does not include—

  (a)

  the Security Service,

  (b)

  the Secret Intelligence Service, or

  (c)

  20the Government Communications Headquarters,

• “Her Majesty’s forces” has the same meaning as in the Armed Forces Act
  2006,

• “Her Majesty’s Government” means Her Majesty’s Government in the
  United Kingdom,

• 25“Leader of the Opposition” has the same meaning as in the Ministerial and
  other Salaries Act 1975,

• “Minister of the Crown” has the same meaning as in the Ministers of the
  Crown Act 1975,

• “notice” means notice in writing.

30Oversight by the Intelligence Services Commissioner

5 Additional review functions of the Commissioner

After section 59 of the Regulation of Investigatory Powers Act 2000
(Intelligence Services Commissioner) insert—

“59A Additional functions of the Intelligence Services Commissioner

(1) 35So far as directed to do so by the Prime Minister and subject to
subsection (2), the Intelligence Services Commissioner must keep
under review the carrying out of any aspect of the functions of—

(a) an intelligence service,

(b) a head of an intelligence service, or

(c) 40any part of Her Majesty’s forces, or of the Ministry of Defence,
so far as engaging in intelligence activities.

(2) Subsection (1) does not apply in relation to anything which is required
to be kept under review by the Interception of Communications
Commissioner or under section 59.

(3) The Prime Minister may give a direction under this section at the
5request of the Intelligence Services Commissioner or otherwise.

(4) Directions under this section may, for example, include directions to
the Intelligence Services Commissioner to keep under review the
implementation or effectiveness of particular policies of the head of an
intelligence service regarding the carrying out of any of the functions of
10the intelligence service.

(5) The Prime Minister must publish, in a manner which the Prime
Minister considers appropriate, any direction under this section (and
any revocation of such a direction) except so far as it appears to the
Prime Minister that such publication would be contrary to the public
15interest or prejudicial to—

(a) national security,

(b) the prevention or detection of serious crime,

(c) the economic well-being of the United Kingdom, or

(d) the continued discharge of the functions of any public authority
20whose activities include activities that are subject to review by
the Intelligence Services Commissioner.

(6) In this section “head”, in relation to an intelligence service, means—

(a) in relation to the Security Service, the Director-General,

(b) in relation to the Secret Intelligence Service, the Chief, and

(c) 25in relation to GCHQ, the Director.”

Part 2 Disclosure of sensitive material

Closed material procedure: general

6 Declaration permitting closed material applications in proceedings

(1) 30The court seised of relevant civil proceedings may make a declaration that the
proceedings are proceedings in which a closed material application may be
made to the court.

(2) The court may make such a declaration—

(a) on the application of—

(i) 35the 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.

(3) The court may make such a declaration if it considers that the following two
40conditions are met.

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

(b) 5a 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,

(ii) 10the 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
15disclosing the material but would not do so if the proceedings
were proceedings in relation to which there was a declaration
under this section.

(5) 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
20Secretary 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
25for 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,

(iii) 30section 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
35under this section.

(6) 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.

(7) 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
40proceedings (and an application under subsection (2)(a) need not be based on
all of the material that might meet the conditions).

(8) 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”).

(9) 45Rules of court may—

(a) provide for notification to the Secretary of State by a party to relevant
civil proceedings, or by the court concerned, of proceedings to which a
declaration under this section may be relevant,

(b) provide for a stay or sist of relevant civil proceedings (whether on an
50application by a party to the proceedings or by the court concerned of

its own motion) where a person is considering whether to apply for a
declaration under this section,

(c) provide for the Secretary of State, if not a party to proceedings in
relation to which there is a declaration under this section or
5proceedings for or about such a declaration, to be joined as a party to
the proceedings.

(10) Rules of court must make provision—

(a) requiring a person, before making an application under subsection
(2)(a), to give notice of the person’s intention to make an application to
10every other person entitled to make such an application in relation to
the relevant civil proceedings,

(b) requiring the applicant to inform every other such person of the
outcome of the application.

(11) In this section—

• 15“closed material application” means an application of the kind mentioned
  in section 8(1)(a),

• “relevant civil proceedings” means any proceedings (other than
  proceedings in a criminal cause or matter) before—

  (a)

  the High Court,

  (b)

  20the Court of Appeal,

  (c)

  the Court of Session, or

  (d)

  the Supreme Court.

• “sensitive material” means material the disclosure of which would be
  damaging to the interests of national security.

7 25Review and revocation of declaration under section 6

(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
30effective 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) 35The 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) 40of 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
45the 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),

(b) as to when the pre-trial disclosure exercise is to be considered to have
been completed for the purposes of subsection (3).

8 Determination by court of applications in section 6 proceedings

(1) 5Rules of court relating to any relevant civil proceedings in relation to which
there is a declaration under section 6 (“section 6 proceedings”) must secure—

(a) that a relevant person has the opportunity to make an application to the
court for permission not to disclose material otherwise than to—

(i) the court,

(ii) 10any person appointed as a special advocate, and

(iii) where the Secretary of State is not the relevant person but is a
party to the proceedings, the Secretary of State,

(b) that such an application is always considered in the absence of every
other party to the proceedings (and every other party’s legal
15representative),

(c) that the court is required to give permission for material not to be
disclosed if it considers that the disclosure of the material would be
damaging to the interests of national security,

(d) that, if permission is given by the court not to disclose material, it must
20consider requiring the relevant person to provide a summary of the
material to every other party to the proceedings (and every other
party’s legal representative),

(e) that the court is required to ensure that such a summary does not
contain material the disclosure of which would be damaging to the
25interests of national security.

(2) Rules of court relating to section 6 proceedings must secure that provision to
the effect mentioned in subsection (3) applies in cases where a relevant
person—

(a) does not receive the permission of the court to withhold material, but
30elects not to disclose it, or

(b) is required to provide another party to the proceedings with a
summary of material that is withheld, but elects not to provide the
summary.

(3) The court must be authorised—

(a) 35if it considers that the material or anything that is required to be
summarised might adversely affect the relevant person’s case or
support the case of another party to the proceedings, to direct that the
relevant person—

(i) is not to rely on such points in that person’s case, or

(ii) 40is to make such concessions or take such other steps as the court
may specify, or

(b) in any other case, to ensure that the relevant person does not rely on the
material or (as the case may be) on that which is required to be
summarised.

9 Appointment of special advocate

(1) The appropriate law officer may appoint a person to represent the interests of
a party in any section 6 proceedings from which the party (and any legal
representative of the party) is excluded.

(2) 5A person appointed under subsection (1) is referred to in this section as
appointed as a “special advocate”.

(3) The “appropriate law officer” is—

(a) in relation to proceedings in England and Wales, the Attorney General,

(b) in relation to proceedings in Scotland, the Advocate General for
10Scotland, and

(c) in relation to proceedings in Northern Ireland, the Advocate General
for Northern Ireland.

(4) A person appointed as a special advocate is not responsible to the party to the
proceedings whose interests the person is appointed to represent.

(5) 15A person may be appointed as a special advocate only if—

(a) in the case of an appointment by the Attorney General, the person has
a general qualification for the purposes of section 71 of the Courts and
Legal Services Act 1990,

(b) in the case of an appointment by the Advocate General for Scotland, the
20person is an advocate or a solicitor who has rights of audience in the
Court of Session or the High Court of Justiciary by virtue of section 25A
of the Solicitors (Scotland) Act 1980, and

(c) in the case of an appointment by the Advocate General for Northern
Ireland, the person is a member of the Bar of Northern Ireland.

10 25Saving for normal disclosure rules

Subject to sections 8, 9 and 11, rules of court relating to section 6 proceedings
must secure that the rules of disclosure otherwise applicable to those
proceedings continue to apply in relation to the disclosure of material by a
relevant person.

11 30General provision about section 6 proceedings

(1) A person making rules of court relating to section 6 proceedings must have
regard to the need to secure that disclosures of information are not made where
they would be damaging to the interests of national security.

(2) Rules of court relating to section 6 proceedings may make provision—

(a) 35about the mode of proof and about evidence in the proceedings,

(b) enabling or requiring the proceedings to be determined without a
hearing,

(c) about legal representation in the proceedings,

(d) enabling the proceedings to take place without full particulars of the
40reasons for decisions in the proceedings being given to a party to the
proceedings (or to any legal representative of that party),

(e) enabling the court concerned to conduct proceedings in the absence of
any person, including a party to the proceedings (or any legal
representative of that party),

(f) 45about the functions of a person appointed as a special advocate,

(g) enabling the court to give a party to the proceedings a summary of
evidence taken in the party’s absence.

(3) In subsection (2) references to a party to the proceedings do not include the
relevant person concerned and (if the Secretary of State is not the relevant
5person but is a party to the proceedings) the Secretary of State.

(4) The following proceedings are to be treated as section 6 proceedings for the
purposes of sections 8 to 10, this section and section 12—

(a) proceedings on, or in relation to, an application for a declaration under
section 6;

(b) 10proceedings 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 8 to 10, this section and section 12,
is a person who would be required to disclose sensitive material in the course
15of the proceedings.

12 Sections 6 to 11: interpretation

(1) In sections 6 to 11 and this section—

• “enactment” means an enactment whenever passed or made and
  includes—

  (a)

  20an enactment contained in this Act,

  (b)

  an enactment contained in subordinate legislation within the
  meaning of the Interpretation Act 1978,

  (c)

  an enactment contained in, or in an instrument made under, an
  Act of the Scottish Parliament,

  (d)

  25an enactment contained in, or in an instrument made under,
  Northern Ireland legislation, and

  (e)

  an enactment contained in, or in an instrument made under, a
  Measure or Act of the National Assembly for Wales,

• “the Human Rights Convention” means the Convention within the
  30meaning of the Human Rights Act 1998 (see section 21(1) of that Act),

• “relevant civil proceedings” has the meaning given by section 6(11),

• “relevant person” has the meaning given by section 6(8) and includes any
  person treated as a relevant person by any enactment,

• “section 6 proceedings” has the meaning given by section 8(1) and
  35includes any proceedings treated as section 6 proceedings by any
  enactment,

• “sensitive material” has the meaning given by section 6(11),

• “special advocate” has the meaning given by section 9(2),

and references to a party’s legal representative do not include a person
40appointed as a special advocate.

(2) Nothing in sections 6 to 11 and this section (or in any provision made by virtue
of them)—

(a) restricts the power to make rules of court or the matters to be taken into
account when doing so,

(b) 45affects the common law rules as to the withholding, on grounds of
public interest immunity, of any material in any proceedings, or