Justice and Security Bill [HL]

Page 1, line 5, after “Committee” insert “of Parliament”

Page 1, line 6, at end insert—

“( ) The proceedings of the ISC shall be considered to be proceedings in Parliament for the purposes of Article IX of the Bill of Rights 1689.”

Page 1, line 6, at end insert—

“( ) The ISC shall be a Select Committee of Parliament.”

Page 1, line 9, at end insert—

“( ) Financial support shall be available to members of the ISC who are members of the House of Commons as if they were members of a Select Committee of that House; and to those who are members of the House of Lords as if they were members of a Select Committee of that House.”

Page 1, line 14, at end insert—

“( ) If the House of Parliament from which a member of the ISC is to be drawn declines to appoint a person nominated by the Prime Minister, the Prime Minister shall nominate an alternative person.”

Page 1, line 15, leave out subsection (5)

Page 1, line 17, after first “ISC” insert “from the Opposition party”

Page 1, line 17, leave out “its members” and insert “the Prime Minister”

Page 1, line 17, at end insert “and the Chair shall be remunerated in line with the arrangements for Chairs of Departmental Select Committees of the House of Commons.”

Page 13, line 6, at end insert “and until immediately before the first meeting of the ISC in the next parliament or 21 days after the first sitting of the next parliament, whichever first occurs”

Page 13, line 11, leave out paragraph (c)

Page 13, line 15, leave out paragraph (b)

Page 14, line 3, leave out “three” and insert “five”

Page 14, line 3, at end insert—

“(a) the ISC shall meet in public save when it determines that members of the public shall be excluded,

(b) a determination under paragraph (a) may be made prior to the meeting to which it applies and may apply to more than one meeting.”

Page 14, line 3, at end insert—

“(6) The ISC shall not less than once in each calendar year hold a public question time for which it shall determine applicable procedures.”

Page 14, line 3, at end insert—

“( ) The ISC may consider the proposed appointment of the following including by questioning the prospective appointee at a meeting of the ISC—

(i) the Head of the Security Service;

(ii) the Head of the Secret Intelligence Service;

(iii) the Head of the Government Communication Headquarters; and

(iv) such other persons as the Prime Minister may direct.”

Page 14, line 3, at end insert—

2A (1) The ISC may decide to hold some of its proceedings in public, subject to sub-paragraph (2).

(2) The ISC may not hold public hearings under sub-paragraph (1) if it might lead to the disclosure of—

(a) sensitive information (as defined in paragraph 4);

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

(3) In addition to its ongoing proceedings, the ISC shall hold annual hearings with the heads of the Agencies and the Secretary of State, which are to be conducted in public.

(4) In this section “heads of the Agencies” means—

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

(b) the Chief of the Secret Intelligence Service; and

(c) the Director of the Government Communications Headquarters.”

Page 14, line 11, at end insert—

“( ) arrange for it to be made available to advisers to the ISC who are the subject of specific security clearance who may then advise the ISC with regard to the information including providing written material in redacted form,”

Page 14, line 13, leave out paragraph (b)

Page 14, line 22, leave out paragraph (b)

Page 14, line 23, leave out “Minister of the Crown” and insert “Secretary of State”

Page 14, line 24, leave out sub-paragraph (3)

Page 14, line 24, leave out “A Minister of the Crown” and insert “The Secretary of State”

Page 14, line 31, leave out paragraph (b)

Page 14, line 34, at end insert—

“(c) it is not information relating to conduct which may amount to a breach of UK or international law, including but not limited to, the European Convention on Human Rights, the United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment.”

Page 14, line 40, leave out sub-paragraph (5)

Page 14, line 46, at end insert—

“(6) In this paragraph “information” includes documents and other material whether held in documentary, electronic or other form.”

Page 15, line 1, leave out paragraph 4

Page 2, line 8, leave out from “oversee” to end of line 10 and insert “any part of a government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities”

Page 2, line 12, leave out from “as” to end of line 13

Page 2, line 15, leave out sub-paragraph (i)

Page 2, line 18, at end insert—

“( ) 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.”

Page 2, line 24, at end insert—

“(d) must be approved by Parliament”

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 32, leave out subsection (3)

Page 2, line 35, leave out from “matter” to end of line 38, and insert “contains—

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

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

Page 2, line 41, at end insert—

“( ) The ISC shall consider any request from a Select Committee of Parliament to the ISC to make a report on any particular issue related to national security and shall report to Parliament whether it has agreed to make such a report.

( ) The ISC shall consider any request from a Select Committee of Parliament for the transfer of information which that Select Committee of Parliament has stated it needs to carry out its functions as a select committee.”

Page 3, line 1, at end insert “the ISC considers”

Insert the following new Clause—

“Statutory PII for national security sensitive material

(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 to another person (whether or not another party to the proceedings), and

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

the Secretary of State must make a claim for public interest immunity in relation to that material under this section.

(2) A claim 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 would be damaging to the interests of national security.

(3) When deciding whether the material attracts PII under this section, the court must weigh, on the one hand, the degree of harm to the interests of national security if the material is disclosed against the public interest in the fair and open administration of justice on the other.

(4) When conducting the balancing exercise under subsection (3), the court shall—

(a) apply a presumption against disclosure of national security sensitive material held by, derived from or relating to an intelligence service, rebuttable only by compelling reasons, and

(b) pay due regard to—

(i) fair trial principles,

(ii) the principle of open justice,

(iii) the right to an effective remedy for violations of human rights,

(iv) the ability of the media to report matters in the public interest, and

(v) the need for state accountability for human rights violations.

(5) If, after conducting the balancing exercise under subsection (3), the court considers that the balance of the public interest lies in non-disclosure, it must consider whether sufficient disclosure to enable a fair trial of the issues is possible by other means short of full disclosure, such as—

(a) redaction;

(b) provision of a summary of the material;

(c) disclosure subject to confidentiality undertakings;

(d) hearings in private;

(e) restrictions on reporting;

(f) restrictions on access;

(g) restrictions on the use of the material.

(6) If, after conducting the process set out in subsection (3) to (5), the court concludes that the balance of the public interest lies in non-disclosure, the court must rule that the material shall not be disclosed.”

Page 4, line 18, leave out subsections (1) to (6) and insert—

“(1) In any relevant civil proceedings in which the court has ruled that material shall not be disclosed under subsection (6) of Section (Statutory PII for national security sensitive material), any party to the proceedings may apply to the court for permission to make a closed material application in respect of that material.

(2) The court may, on an application under subsection (1), grant such permission if the court considers that—

(a) a closed material procedure is the only way in which the issues in the case can be determined, and

(b) the public interest in having the issues in the case determined outweighs the unfairness of either the claim or the defence being struck out.”

Page 4, line 18, leave out “The Secretary of State” and insert “Any party to relevant proceedings”

Page 4, line 18, leave out “The Secretary of State” and insert “A party”

Page 4, line 20, at end insert “if the threshold criteria are met”

Page 4, line 20, at end insert—

“( ) The threshold criteria which any party making an application under subsection (1) is required to establish are—

(a) the court has determined the claim for public interest immunity in relation to the material on which the application is based,

(b) the court has excluded material relevant to the issues identified in the claim on the grounds of public interest immunity,

(c) the excluded material includes evidence which would be damaging to national security,

(d) the court agrees to consider an application under subsection (1) on completion of the PII process.”

Page 4, line 21, leave out “must” and insert “may”

Page 4, line 22, leave out from “court” to end of line 27 and insert—

“has considered all relevant material and is satisfied that—

(a) the threshold criteria are met,

(b) a just resolution of the issues identified in the claim cannot be achieved by the PII process or any means other than a closed material procedure, and

(c) there is no serious risk of injustice to either party if the application for a closed material procedure is granted.”

Page 4, line 27, at end insert—

“(c) that material would be inadmissible in the proceedings by reason of public interest immunity, and

(d) it is strictly necessary in the interests of justice that the material is admissible.”

Page 4, line 28, leave out subsection (3) and insert—

“( ) In deciding any application under subsection (1), the court must consider—

(a) the extent to which the PII process or any other procedural means could provide a just resolution of the issues identified in the claim,

(b) the extent to which either party may wish to rely on excluded material relevant to the issues identified in the claim,

(c) the consequence for each party if the application is granted,

(d) the delay or cost (or both) which may be incurred by a closed material procedure following completion of the PII process,

(e) whether it would be in the interests of justice to grant the application.”

Page 4, line 40, leave out from beginning to “a” and insert “have made or ensured another person has made”

Page 5, line 6, leave out “the Secretary of State” and insert “any party”

Page 5, line 15, after “matter” insert “or claims in which conduct alleged against a party may result in such a criminal cause or matter”

Page 5, line 15, after “matter” insert “, any action against the police or law enforcement agencies, or any action seeking a person’s release from detention”

Page 5, line 18, at end insert—

““national security” means an operation of the intelligence or military services”

Insert the following new Clause—

“Disclosure of information

The disclosure of information in civil proceedings pursuant to an order of the court is to be regarded for the purposes of the Security Service Act 1989 or the Intelligence Services Act 1994 as necessary for the proper discharge of the functions of the Security Service, the Secret Intelligence Service or (as the case may be) the Government Communications Headquarters.”

Page 5, line 28, leave out “is always” and insert “may be”

Page 5, line 30, at end insert—

“( ) 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 procedure and trial,”

Page 5, line 31, leave out paragraph (c)

Page 5, line 33, after “security” insert “and that damage outweighs the interests of justice in disclosure”

Page 5, line 33, at end insert “and that damage outweighs the public interest in the fair and open administration of justice”

Page 5, line 35, leave out “consider requiring” and insert “require”

Page 5, line 38, leave out paragraph (e)

Page 5, line 38, leave out from “summary” to end of line 40 and insert “contains sufficient information to enable the excluded party to give effective instructions to his legal representative and special advocate”

Page 5, line 40, at end insert—

“( ) that the special advocate is afforded the opportunity to take instructions from the party whose interests he is appointed to represent,

( ) that the special advocate is at liberty to apply to the court at any time if he considers that any relevant material should be disclosed,

( ) that the section 6 proceedings are terminated if at any time the special advocate withdraws from those proceedings subject to section 8(6) below (the claim proceeding on the basis of the court’s prior determination of the application for PII),

( ) that costs are awarded against any party applying for a declaration under section 6 where the court determines that proceedings are not relevant civil proceedings or the threshold criteria are not made out.”

Page 6, line 13, leave out “may” and insert “must”

Page 6, line 14, leave out “in any section 6” and insert “as soon as practicable following notice that an application under section 6 has been made and, if the application is granted, for the duration of”

Page 6, line 24, leave out “not responsible to” and insert “responsible for representing the interests of”

Page 6, line 35, at end insert—

“(6) The special advocate is responsible for providing a summary of excluded material relevant to the issues identified in the claim to the party whose interests he is appointed to represent (and that party’s legal representative).

(7) The special advocate may withdraw from section 6 proceedings if at any time he considers that he is prevented or otherwise unable to properly represent the interests of the excluded party.

(8) The special advocate must report in writing to the ISC at the end of any section 6 proceedings for which he is appointed.

(9) The special advocate is responsible for maintaining confidentiality in respect of any material in section 6 proceedings except insofar as may be necessary to—

(a) comply with his duty to provide a summary of excluded material pursuant to subsection (6), and

(b) refer any material in section 6 proceedings which may amount to a crime to the Crown Prosecution Service.”

Page 6, line 42, leave out subsection (1)

Page 7, line 3, leave out paragraph (b)

Page 8, line 1, leave out subsections (2) to (4)

Page 10, line 4, at end insert—

“( ) Section (Statutory PII for national security sensitive material) applies in disclosure proceedings to which this section applies.”

Page 10, line 5, at beginning insert “However”

Page 10, line 7, leave out “sensitive” and insert “certified control principle”

Page 10, line 8, leave out “Sensitive” and insert “Certified control principle”

Page 10, line 9, leave out paragraphs (a) to (d)

Page 10, line 9, leave out paragraphs (a) to (e) and insert “specified or described in a certificate issued by the Secretary of State, in relation to the proceedings, as information which B should not be ordered to disclose”

Page 10, line 15, after “information” insert “received in confidence from a foreign intelligence service”

Page 10, line 18, leave out “be contrary to the public interest” and insert “breach the control principle”

Page 10, line 23, leave out subsection (5)

Page 10, line 26, leave out paragraph (b)

Page 10, line 27, at end insert—

““control principle” means the mutual understanding between intelligence services that intelligence is shared confidentially and cannot be disclosed without the consent of the intelligence service which provided the intelligence”

Lord Pannick gives notice of his intention to oppose the Question that Clause 13 stand part of the Bill.

Page 11, line 14, leave out “ground” and insert “grounds”

Page 11, line 15, leave out “That ground is” and insert “Those grounds are—

(a) ”

Page 11, line 17, leave out “be contrary to the public interest” and insert “breach the control principle”

Page 11, line 18, at end insert—

“(b) that the harm caused by the disclosure of the information is outweighed by the need to ensure an effective remedy for serious human rights violations.”

Page 11, line 20, leave out “ground” and insert “grounds”

Page 11, line 27, leave out paragraph (b)

Lord Pannick gives notice of his intention to oppose the Question that Clause 14 stand part of the Bill.