Justice and Security Bill [HL]

SECOND
MARSHALLED
LIST OF AMENDMENTS
TO BE MOVED
IN COMMITTEE
OF
THE
WHOLE
HOUSE

The amendments have been marshalled in accordance with the Instruction of 27th June 2012, as follows—

Clauses 3 to 15
Schedules 2 and 3
Clause 16

[Amendments marked * are new or have been altered]

Clause 3

LORD BUTLER OF BROCKWELL

THE MARQUESS OF LOTHIAN

BARONESS SMITH OF BASILDON

LORD BEECHAM

35

Page 2, line 32, leave out subsection (3)

BARONESS SMITH OF BASILDON

LORD BEECHAM

LORD ROSSER

36

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.”

LORD CAMPBELL-SAVOURS

37

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.”

LORD BUTLER OF BROCKWELL

THE MARQUESS OF LOTHIAN

BARONESS SMITH OF BASILDON

LORD BEECHAM

38

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

Before Clause 6

LORD FAULKS

LORD LESTER OF HERNE HILL

LORD PANNICK

LORD MACDONALD OF RIVER GLAVEN

39

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.”

Clause 6

LORD FAULKS

LORD LESTER OF HERNE HILL

LORD PANNICK

LORD MACDONALD OF RIVER GLAVEN

40

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.”

LORD HODGSON OF ASTLEY ABBOTTS

41

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

LORD THOMAS OF GRESFORD

BARONESS HAMWEE

42

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

LORD HODGSON OF ASTLEY ABBOTTS

43

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

44

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.”

LORD HODGSON OF ASTLEY ABBOTTS

LORD THOMAS OF GRESFORD

BARONESS HAMWEE

45

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

LORD HODGSON OF ASTLEY ABBOTTS

46

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.”

LORD THOMAS OF GRESFORD

BARONESS HAMWEE

47

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.”

LORD HODGSON OF ASTLEY ABBOTTS

48

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.”

49

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

50

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

51

[Withdrawn]

LORD THOMAS OF GRESFORD

BARONESS HAMWEE

52

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”

LORD HODGSON OF ASTLEY ABBOTTS

53

Page 5, line 18, at end insert—

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

After Clause 6

LORD THOMAS OF GRESFORD

BARONESS HAMWEE

54

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.”

Clause 7

LORD HODGSON OF ASTLEY ABBOTTS

55

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

56

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,”

57

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

LORD THOMAS OF GRESFORD

BARONESS HAMWEE

58

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

LORD PANNICK

LORD LESTER OF HERNE HILL

59

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

LORD HODGSON OF ASTLEY ABBOTTS

LORD PANNICK

LORD LESTER OF HERNE HILL

60

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

LORD HODGSON OF ASTLEY ABBOTTS

61

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

LORD PANNICK

LORD LESTER OF HERNE HILL

62

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”

LORD HODGSON OF ASTLEY ABBOTTS

63*

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, and

( ) 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.”

Clause 8

LORD HODGSON OF ASTLEY ABBOTTS

LORD BEECHAM

BARONESS SMITH OF BASILDON

64

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

LORD HODGSON OF ASTLEY ABBOTTS

65

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”

66

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

67

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.”

After Clause 8

LORD BEECHAM

BARONESS SMITH OF BASILDON

67A

Insert the following new Clause—

“Independent review of closed material procedure

The Secretary of State shall ensure that an independent review is conducted into the impact of the provisions under Part 2, to conclude three years after the coming into force of this Act, and shall publish a report on the review to both Houses of Parliament.”

67B

Insert the following new Clause—

“Annual report to Parliament on use of closed material procedures

The Secretary of State shall prepare an annual report to Parliament on the use of closed material procedures (“CMPs”) in England and Wales, Scotland and Northern Ireland, including the number of applications made and the number of CMPs granted, and shall lay out the Government’s reasons for any increase or decrease in the number of Secretary of State applications, and shall lay this report before both Houses of Parliament each year.”

67C

Insert the following new Clause—

“Open statements for closed judgments

Closed judgments must be accompanied by an open statement from the court, which shall include—

(a) the reasons for the closed material procedure;

(b) any factors which would be particularly relevant in determining whether all or part of the closed judgment could be made open at a later date;

(c) the duration of open hearings and closed hearings;

(d) the number of witnesses heard in closed proceedings, and the nature of those witnesses;

(e) the length of a closed judgment;

(f) whether national security was an issue in the proceedings; and

(g) the date at which the closed status of the judgment should be reviewed, which must be no later than five years from the date of the judgment.”

After Clause 9

LORD THOMAS OF GRESFORD

67D*

Insert the following new Clause—

“Disclosure judge

(1) The jurisdiction of the court in section 6 proceedings shall be exercised by a judge designated by the Lord Chief Justice for such purposes.

(2) A judge so designated shall be referred to as “the disclosure judge”.

(3) The disclosure judge shall not be the trial judge of the relevant civil proceedings.”

Clause 10

LORD HODGSON OF ASTLEY ABBOTTS

68

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

69

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

BARONESS BERRIDGE

LORD PANNICK

69ZA*

Page 7, line 14, at end insert—

“( ) Rules of court relating to section 6 proceedings must make provision—

(a) requiring the court concerned to notify relevant representatives of the media of proceedings in which an application for a declaration under section 6 has been made,

(b) providing for any person notified under paragraph (a) to be permitted to intervene in the proceedings,

(c) providing for a stay or sist of relevant civil proceedings to enable anyone notified under paragraph (a) to consider whether to intervene in the proceedings,

(d) enabling any party to the proceedings or any intervener to apply to the court concerned for a determination of whether there continues to be justification for not giving full particulars of the reasons for decisions in the proceedings, and

(e) requiring the court concerned, on an application under paragraph (d), to publish such of the reasons for decision as the court determines can no longer be justifiably withheld.”

Clause 11

LORD BEECHAM

BARONESS SMITH OF BASILDON

69A

Page 8, line 1, leave out subsection (2)

LORD HODGSON OF ASTLEY ABBOTTS

70

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

Clause 13

LORD LESTER OF HERNE HILL

LORD PANNICK

LORD MACDONALD OF RIVER GLAVEN

BARONESS BERRIDGE

71

Page 10, line 4, at end insert—

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

72

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

73

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

74

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

75

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

LORD THOMAS OF GRESFORD

BARONESS HAMWEE

76

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”

LORD LESTER OF HERNE HILL

LORD PANNICK

LORD MACDONALD OF RIVER GLAVEN

BARONESS BERRIDGE

77

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

78

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

79

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

BARONESS WILLIAMS OF CROSBY

80

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

LORD BEECHAM

BARONESS SMITH OF BASILDON

80A

Page 10, line 26, leave out “the interests of”

LORD LESTER OF HERNE HILL

LORD PANNICK

LORD MACDONALD OF RIVER GLAVEN

BARONESS BERRIDGE

81

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

 

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

Clause 14

LORD LESTER OF HERNE HILL

LORD PANNICK

LORD MACDONALD OF RIVER GLAVEN

BARONESS BERRIDGE

82

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

83

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

(a) ”

84

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

85

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.”

86

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

87

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

LORD PANNICK

 

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

After Clause 14

BARONESS BERRIDGE

LORD PANNICK

88*

Insert the following new Clause—

“Reporting and review

(1) As soon as reasonably practicable after the end of every 3 month period the Secretary of State must—

(a) prepare a report about his exercise of the powers conferred on him under this Part of this Act during that period, and

(b) lay a copy of that Report before Parliament.

(2) The person appointed by the Secretary of State to review the operation of the provisions of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006 must also carry out an annual review of the operation of the provisions of this Part of this Act.”

89*

Insert the following new Clause—

“Annual renewal

(1) The Secretary of State’s powers under Part 2 of this Act expire at the end of the period of one year beginning with the day on which this Act is passed.

(2) The Secretary of State may, by order made by statutory instrument, provide that the Secretary of State’s powers under Part 2 of this Act are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection but are to continue in force after that time for a period not exceeding one year.

(3) An order under this section may not be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.”

Prepared 10th July 2012