Justice and Security Bill [HL]

Page 2, line 25, leave out subsection (5) and insert—

“(5) 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.”

Page 2, line 26, at end insert—

“(6) The ISC shall consider any request by a Select Committee of Parliament to—

(a) review any particular issue related to national security; or

(b) transfer information which that Select Committee of Parliament has stated it needs to carry out its functions as a select committee.

(7) The terms of any consideration under subsection (6) are to be set out in a memorandum of understanding between the ISC and the Select Committee in question.”

Insert the following new Clause—

Application for public interest immunity

“(1) In any relevant civil proceedings in which the Secretary of State considers that—

(a) a party to the proceedings, whether or not the Secretary of State would be required to disclose material in the course of the proceedings;

(b) such disclosure would be damaging to the interests of national security; and

(c) the interests of national security outweigh the public interest in the fair and open administration of justice,

the Secretary of State must make an application for public interest immunity under this section.

(2) An application for public interest immunity under this section must be made by the Secretary of State issuing a certificate relating to the individual documents in question and giving reasons why, in the Secretary of State’s view, disclosure of each relevant document would be damaging to the interests of national security.

(3) The court must, when deciding whether the material attracts public interest immunity on application under subsection (1), weigh the degree of harm to the interests of national security if the relevant material is disclosed against the public interests in the fair and open administration of justice.

(4) The court shall, in conducting the balancing exercise required under subsection (3), consider whether any of the following procedures may mitigate any harm claimed to the interests of national security so as to enable disclosure or partial disclosure of material subject to an application under this section—

(a) redaction;

(b) orders for anonymity;

(c) disclosure subject to confidentiality undertakings;

(d) hearings in camera;

(e) restrictions on reporting;

(f) restrictions on access;

(g) restrictions on the use of the material.

(5) If, after conducting the process set out in subsections (3) and (4), the court concludes that the balance of the public interest lies in excluding any material, the court must uphold the application for public interest immunity made by the Secretary of State in relation to that material.

(6) Where any claim by the Secretary of State for public interest immunity is upheld the court must appoint a special advocate pursuant to section 8.”

Page 4, line 18, leave out subsections (1) to (5) and insert—

“(1) In any relevant civil proceedings in which the court has granted an application for public interest immunity and excluded material relevant to the issues identified in the claim under section 6 a party to the proceedings may apply to the court for a declaration that the proceedings are proceedings in which a closed material application may be made.

(2) The court may, on application under subsection (1), make such a declaration only if the court has considered relevant material and is satisfied that—

(a) there are no procedural or other means which would enable the court to provide a just resolution of the issues and the claim cannot be determined without a closed material procedure;

(b) the public interest in determining that particular claim outweighs the public interests in fair and open administration of justice;

(c) there is no serious risk of injustice to a party if the application is granted; and

(d) the court is satisfied that it can properly assess the reliability of the closed evidence notwithstanding the absence of one or more party.

(3) In determining the risk of injustice to each party under subsection (2)(c), the court must ignore any costs consequences to the Secretary of State which may be caused as a result of an application under subsection (1) made by him.

(4) On the court granting a declaration under subsection (1), a party may apply for a relevant document or other material to be excluded from proceedings.

(5) In each application made under this section, the court may in its discretion order non-disclosure of a document (or other specific material) only if the court has considered that evidence and is satisfied that—

(a) there are no procedural means available which would enable disclosure or partial disclosure of that evidence;

(b) the public interest in excluding that particular document (or other material) on the grounds of national security outweighs the public interest in fair and open administration of justice; and

(c) there is no serious risk of injustice to a party if that document or other material is excluded.

(6) Notice of any application made under this section must be served on all parties to the proceedings.”

Page 5, line 18, at end insert—

“except for proceedings which arise in connection with the claimant’s loss of liberty”

Page 5, line 20, leave out subsection (1) and insert—

“(1) Rules of the court relating to any relevant civil proceedings in relation to which an application under section 6 has been granted (“section 6 proceedings”) must secure—

(a) that the party making the application is obliged to make full and frank disclosure of all material and information relevant to the issues in the claim and relevant to the reliability and admissibility of any evidence within that party’s control,

(b) that any material or information which may have been procured by torture or other cruel, inhuman or degrading treatment is ruled inadmissible,

(c) that opinion evidence is ruled inadmissible save for opinion on national security or other matters which may be provided by an independent expert,

(d) that, where a party intends to adduce hearsay evidence, a civil evidence act notice is served which must identify the source of the evidence and state why video-link or closed oral evidence is impracticable in the particular circumstances of that claim,

(e) that the burden of proving or disproving any fact in section 6 proceedings shall be on the party who would otherwise be obliged to disclose material relevant to that fact,

(f) that the costs of any section 6 proceedings shall be borne by the Secretary of State,

(g) that any judgment of the court adverse to a party excluded from section 6 proceedings shall be deemed to be an interlocutory judgment and a person adversely affected by such a judgment may at any time apply to court to have the judgment set aside on the basis of fresh evidence not available to that party at the time of the section 6 proceedings,

(h) that the Secretary of State and a special advocate shall review at least once every year for 12 years after judgment in that case the material heard by the court in section 6 proceedings and the Secretary of State shall disclose any material which no longer satisfies the requirements of that section,

(i) that the court shall have power, upon the application of the special advocate, to order the disclosure of material if it considers that the balance of public interest weighs in favour of disclosure.”

Page 6, line 12, leave out “may” and insert “must”

Page 6, line 24, leave out subsection (4) and insert—

“(4) The special advocate must—

(a) consider and advise on any excluded material and whether it is in the interests of the party from whom the material is withheld to exercise his right to make an application under section 6;

(b) represent the interests of the excluded party at the hearing of any application under section 6 and, if the application is granted, for—

(i) the duration of any section 6 proceedings which may follow,

(ii) the open trial, and

(iii) the annual review and any further application to the court carried out pursuant to section 7(1) above;

(c) provide a summary of excluded material to the excluded party (and his legal representative) containing sufficient information to enable the excluded party to give effective instructions;

(d) apply to the court any time he considers material or information in section 6 proceedings may be suitable for disclosure;

(e) refer any material in section 6 proceedings which may amount to a crime to the Crown Prosecution Service, the DPP and the Attorney General;

(f) report in writing to the ISC at the end of the trial on the conduct and fairness of section 6 proceedings;

(g) maintain confidentiality in respect of material and information in section 6 proceedings (except insofar as may be necessary to comply with his duties under this section).”

Page 9, line 40, at end insert—

“( ) Section (Application for public interest immunity) applies in disclosure proceedings to which this section applies.”

Page 10, line 6, leave out from “sought” to end of line 26 and insert—

“(3) A court may not, in the exercise of its disclosure jurisdiction, order the disclosure of information sought if the information is “certified control principle” information except insofar as provided by subsection (4).

(4) In this section “certified control principle” means any agreement with foreign intelligence services that intelligence is shared confidentially and cannot be disclosed without the consent of the intelligence service which provided the intelligence.

(5) Nothing in this Act shall prevent a court ordering the disclosure of any material or information relating to conduct which may amount to commission of the following domestic and international wrongs—

(a) genocide,

(b) murder,

(c) torture,

(d) slavery,

(e) cruel, inhuman or degrading treatment,

(f) child abuse,

(g) serious breaches of the Geneva Conventions.”

Insert the following new Clause—

“Extent

(1) The powers under Part 2 of this Act expire at the end of the period of 5 years beginning with the day on which this Act is passed.

(2) The Secretary of State must before the end of the period of 5 years propose to Parliament that a Parliamentary select committee be established to review generally the operation and fairness of this Act.”

Insert the following new Clause—

“Extent

(1) The powers under Part 2 expire at the end of the period of five years beginning with the day on which this Act is passed.

(2) The Secretary of State must, before the end of five years from the passing of this Act, establish a body known as the Justice and Security Act Review Panel (“JSRP”) to review generally the operation and fairness of this Act.

(3) The JSRP will consist of five members appointed by the Secretary of State to include—

(a) a judge or retired judge of the High Court, the Court of Appeal or the Supreme Court;

(b) a special advocate;

(c) a member or retired senior officer of the security services;

(d) a security-vetted member or retired member of the legal profession who has had experience of representing persons excluded from section 6 proceedings; and

(e) the Chair of the Intelligence and Security Committee.

(4) The JSRP must consider the following matters—

(a) the exercise of powers conferred on the Secretary of State under this Part;

(b) the impact this Part has had on state accountability and the right to an effective remedy for violations of human rights;

(c) the impact this Part has had on the principles of fair trial and open justice;

(d) the ability of the media to report matters in the public interest;

(e) any other matter considered appropriate by a member of the JSRP.

(5) In conducting its review, the JSRP may on notice—

(a) examine any material or information (or both) relevant to a case in which an application under section 6 has been made; and

(b) require any special advocate or other person to give evidence orally or in writing to any matter identified in subsection (4), such evidence to be confidential to the members of the JSRP.

(6) The JSRP must before the end of the period of five years compile a report of conclusions and recommendations regarding Parts 1 and 2 of this Act for the Minister which shall be laid before Parliament.

(7) The Secretary of State may by order provide that the powers under Part 2 of this Act do not expire under subsection (1), and such an order is to be approved by a resolution of each House of Parliament.”