Justice and Security Bill [HL]

THIRD
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 6 to 15
Schedules 2 and 3
Clause 16

[Amendments marked * are new or have been altered]

Clause 6

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.”

LORD DUBS

54A*

Insert the following new Clause—

“Independent judicial commissioners to sit with judges in closed material proceedings

(1) Where the court makes a declaration pursuant to section 6(1)—

(a) the judge in the relevant civil proceedings shall thereafter sit with four independent judicial commissioners who shall sit throughout all open and closed proceedings;

(b) the independent judicial commissioners shall sit with the judge as judges of fact.

(2) The independent judicial commissioners shall consist of—

(a) county court judges, serving or retired, who have been subject to security vetting, such security vetting to have been supervised by a High Court judge; or

(b) retired judges of the High Court, Court of Appeal or Supreme Court; and in either case—

(i) being persons who have had no professional or other substantial connection with the armed services or security services; and

(ii) being persons who have, so far as possible, never before sat as judges or independent judicial commissioners in closed material proceedings.

(3) Judgement shall be given in favour of the excluded parties in the relevant civil proceedings unless the judge and the judicial commissioners shall unanimously or by a majority verdict of not less than 4:1 find that the cases of the excluded parties have been disproved to a high degree of conviction.”

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 MARKS OF HENLEY-ON-THAMES

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.”

LORD HODGSON OF ASTLEY ABBOTTS

LORD DUBS

69ZB

Page 7, line 23, at end insert—

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

(a) to ensure that the burden of proving or disproving any fact in issue in relevant civil proceedings in which a declaration has been made under section 6(1) shall be upon any party who would (but for the declaration under section 6(1)) be obliged to disclose the material to the excluded party and that the standard of proof shall be to a high degree of conviction;

(b) to ensure that upon the Secretary of State making an application under section 6(1), he shall be obliged to make full and frank unredacted disclosure to the court and Special Advocate of all material and information relevant to—

(i) the issues in the action;

(ii) the admissibility of any evidence in section 6 proceedings;

(iii) the reliability of any such evidence;

(iv) the existence of witnesses or lines of inquiry leading to the discovery of relevant material; or

(v) the appropriate court procedure for determining the issues in the claim;

(c) to ensure that any material which the Special Advocate represents may have procured by torture or by cruel inhuman or degrading treatment is ruled inadmissible unless the contrary is proved to a high degree of conviction;

(d) to ensure that inexpert opinion evidence is inadmissible;

(e) to ensure that the court shall not without the consent of the Special Advocate admit any statement constituting hearsay evidence without—

(i) the source being identified to the court’s satisfaction;

(ii) the court being satisfied that it is impracticable for the source to provide live evidence to the court by oral evidence or video-link and to be available for cross-examination; and

(iii) the court being satisfied that the words of the source are reported or recorded accurately and there is no risk of significant misquotation through multiple hearsay or otherwise;

(f) to empower the court to impose appropriate sanctions for any failure to comply with the duty set out in paragraph (e)(ii) above including the power to strike out a case or discharge any declaration made under section 6(1).”

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)

LORD MARKS OF HENLEY-ON-THAMES

BARONESS WILLIAMS OF CROSBY

LORD THOMAS OF GRESFORD

70A

Page 8, line 4, leave out paragraph (a)

70B

Page 8, line 7, leave out from “provision” to end of line 8

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”

LORD HODGSON OF ASTLEY ABBOTTS

LORD DUBS

73A

Page 10, line 7, at end insert “provided that nothing in this Act shall prevent a court ordering the disclosure of information relating to the commission of the following wrongs—

(a) genocide;

(b) murder;

(c) torture;

(d) slavery;

(e) cruel inhuman or degrading treatment;

(f) breaches of the Geneva Conventions;

(g) child abuse”

LORD LESTER OF HERNE HILL

LORD PANNICK

LORD MACDONALD OF RIVER GLAVEN

BARONESS BERRIDGE

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 HODGSON OF ASTLEY ABBOTTS

75A

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”

LORD HODGSON OF ASTLEY ABBOTTS

77ZA

Page 10, line 16, at end insert “and which is information communicated in confidence by a foreign government to the intelligence services which is not in the public domain”

LORD MARKS OF HENLEY-ON-THAMES

BARONESS WILLIAMS OF CROSBY

LORD THOMAS OF GRESFORD

77A

Page 10, line 16, at end insert—

“and which 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 or the United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment”

LORD LESTER OF HERNE HILL

LORD PANNICK

LORD MACDONALD OF RIVER GLAVEN

BARONESS BERRIDGE

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.”

LORD LESTER OF HERNE HILL

LORD PANNICK

90*

Insert the following new Clause—

“Overriding objectives

In performing their functions under this Part, the Secretary of State and the court must have regard, in particular—

(a) to the overriding objective of protecting the interests of justice and fairness, and

(b) to the need to ensure that any interference with the principle of open justice is no more than is necessary to protect the interests of national security.”

Prepared 16th July 2012