Justice and Security Bill [HL]

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 (“Application for public interest immunity”) 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.

(5A) Notice of any application made under this section must be served on all parties to the proceedings.”

Page 4, line 18, leave out from first “The” to first “a” in line 19 and insert “court seised of relevant civil proceedings may, on application of either party or of its own motion, make”

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

Page 4, line 21, leave out “must, on an application under subsection (1),” and insert “may”

Page 4, line 27, at end insert—

“( ) the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice”

Page 4, line 27, at end insert—

“( ) a fair determination of the proceedings is not possible by any other means”

Page 4, line 30, leave out paragraph (a)

Page 4, line 35, at end insert “and any other enactment which would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.”

Page 4, line 42, at end insert—

“( ) Before making a declaration under subsection (2), the court must consider whether a claim for public interest immunity could have been made in relation to the material.”

Page 5, line 10, at end insert—

“( ) Rules of court must make provision—

(a) requiring the Secretary of State, before making an application under subsection (1), to give notice of the Secretary of State’s intention to make an application to all of the parties to the relevant civil proceedings,

(b) requiring the Secretary of State to inform all of the parties to the relevant civil proceedings of the outcome of the application.”

Page 5, line 17, leave out “or”

Page 5, line 18, at end insert “, or

( ) the Supreme Court”

Page 5, line 18, at end insert—

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

Leave out Clause 6

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 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 37, at end insert “sufficient to enable the party to whom the summary is provided to give effective instructions on the undisclosed material to their legal representatives and special advocates”

Page 5, line 38, after “ensure” insert “so far as it is possible to do so”

Leave out Clause 7

Page 6, line 13, 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 Director of Public Prosecutions 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).”

Leave out Clause 8

Leave out Clause 9

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 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.”

Leave out Clause 10

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

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

Page 8, line 2, at end insert—

“( ) The Secretary of State may only make an order under subsection (2) above if—

(a) where the order seeks to amend the definition of relevant civil proceedings in Scotland, he has the consent of Scottish Ministers,

(b) where the order seeks to amend the definition of relevant civil proceedings in Northern Ireland, he has the consent of the Northern Ireland Executive.”

Leave out Clause 11

Insert the following new Clause—

“Extent

(1) The powers under sections 6 to 11 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 conduct a review.”

Insert the following new Clause—

“Use of intercept evidence in employment cases involving national security

(1) Section 18 of the Regulation of Investigatory Powers Act 2000 (exclusion of intercepted communications etc. from legal proceedings: exceptions) is amended as follows.

(2) In subsection (1), after paragraph (d) insert—

“(dza) any proceedings before an employment tribunal, or (in Northern Ireland) an industrial tribunal, where the applicant or the applicant’s representatives are excluded for all or part of the proceedings pursuant to—

(i) a direction to the tribunal by virtue of section 10(5)(b) or (c) of the Employment Tribunals Act 1996 or (as the case may be) Article 12(5)(b) or (c) of the Industrial Tribunals (Northern Ireland) Order 1996 (S.I. 1996/1921 (N.I. 18)) (exclusion from Crown employment proceedings by direction of Minister in interests of national security), or

(ii) a determination of the tribunal by virtue of section 10(6) of that Act or (as the case may be) Article 12(6) of that Order (determination by tribunal in interests of national security),

or any proceedings arising out of such proceedings;

(dzb) any proceedings on an appeal under Article 80(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998 (S.I. 1998/3162 (N.I. 21)) where—

(i) the appeal relates to a claim of discrimination in contravention of Part 3 of that Order (employment cases) and to a certificate of the Secretary of State that the act concerned was justified for the purpose of safeguarding national security, and

(ii) a party to the appeal or the party’s representatives are excluded for all or part of the proceedings by virtue of section 91(4)(b) of the Northern Ireland Act 1998,

or any proceedings arising out of such proceedings;”.

(3) In subsection (2)—

(a) in the opening words, for “(db)” substitute “(dza)”,

(b) after “anything—” insert—

“(zza) in the case of proceedings falling within paragraph (dza), to—

(i) the person who is or was the applicant in the proceedings before the employment or industrial tribunal, or

(ii) any person who for the purposes of proceedings so falling (but otherwise than by virtue of appointment as a special advocate) represents that person;

(zzb) in the case of proceedings falling within paragraph (dzb), to—

(i) any person who is or was excluded from all or part of the proceedings on appeal under Article 80(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998, or

(ii) any person who for the purposes of proceedings so falling (but otherwise than by virtue of appointment as a special advocate) represents that person;”.”

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.”

Page 10, line 7, after “is” insert “certified”

Page 10, line 8, at beginning insert ““Certified”

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

Page 10, line 9, at end insert “where that information relates to national security or the interests of the United Kingdom”

Page 10, line 10, leave out “an” and insert “a foreign”

Page 10, line 12, leave out “an” and insert “a foreign”

Page 10, line 13, leave out paragraph (d)

Page 10, line 16, at end insert “because it is—

(i) UK intelligence information the disclosure of which would reveal the identity of UK intelligence officers or their sources, or their capability (including the techniques and methodology that they use); or

(ii) foreign intelligence material provided confidentially by another country”

Page 10, line 18, leave out “contrary to the public interest” and insert “damaging to the interests of national security”

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

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

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 “contrary to the public interest” and insert “damaging to the interests of national security”

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)

Insert the following new Clause—

“Reporting and review

(1) As soon as reasonably practicable after the end of every three 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.”

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.”

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 four 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.”

Page 19, line 33, at end insert—

“( ) Sub-paragraph (1) does not apply to rules of court in relation to proceedings before the Supreme Court.”

Page 20, line 25, at end insert—

“3A (1) An order under section 15(2) may, in particular, make provision about the application of section 12, and paragraphs 7, 8 and 10 of Schedule 2, to any direction or decision of the Secretary of State which—

(a) is of a kind falling within section 2C(1)(a) and (b) or (as the case may be) 2D(1)(a) of the Special Immigration Appeals Commission Act 1997, and

(b) was made before the section 12 commencement day.

(2) Provision of the kind mentioned in sub-paragraph (1) may, in particular, provide for—

(a) the Secretary of State to certify under section 2C(1)(c) or (as the case may be) 2D(1)(b) of the Special Immigration Appeals Commission Act 1997, on or after the section 12 commencement day, any direction or decision falling within sub-paragraph (1),

(b) the termination of any judicial review proceedings, or proceedings on appeal from such proceedings, which relate to a direction or decision which is so certified (whether such proceedings began before, on or after the section 12 commencement day).

(3) In this paragraph “the section 12 commencement day” means the day on which section 12 comes into force.”

Page 12, line 4, leave out from beginning to “come” and insert “The following provisions—

(a) section 1 and Schedule 1,

(b) sections 2 to 14,

(c) section 15(1) (except so far as relating to paragraph 3A of Schedule 3),

(d) Schedule 2, and

(e) Schedule 3 (other than paragraph 3A of that Schedule),”

Page 12, line 6, at end insert—

“(1A) No order shall be made under subsection (1) appointing a day before 1 June 2015 as the day on which any or all of sections 6 to 14 come into force; and before the date appointed in any such order or orders the Secretary of State shall report to both Houses of Parliament setting out his reasons why he considers it necessary for the order or orders to be made.

(1B) No order shall be made under subsection (1) appointing the day on which any or all of sections 6 to 14 come into force unless a draft of such an order has, or drafts of such orders have, been laid before, and approved by resolution of, both Houses of Parliament.”

Page 12, line 7, at beginning insert “The following provisions—

(a) section 15(1) so far as relating to paragraph 3A of Schedule 3,

(b) paragraph 3A of Schedule 3,

(c) ”

Page 12, line 9, leave out “subsection (4)” and insert “subsections (4) to (4B)”

Page 12, line 17, at end insert—

“(4A) Her Majesty may by Order in Council provide for section 12 and paragraph 7 of Schedule 2 to extend, with or without modifications, to any of the Channel Islands or to the Isle of Man.

(4B) An Order under subsection (4A) may, in particular, include (with or without modifications) transitional provision of the kind permitted by paragraph 3A of Schedule 3.”

Line 3, leave out “provide for” and insert “make provision about”