Justice and Security Bill (HL Bill 27)

Part 1 Oversight of intelligence and security activities

Oversight by the Intelligence and Security Committee

1 The Intelligence and Security Committee

(1) 5There is to be a body known as the Intelligence and Security Committee (in this
Part referred to as “the ISC”).

(2) The ISC is to consist of nine members who are to be drawn both from the
members of the House of Commons and from the members of the House of
Lords.

(3) 10Each member of the ISC is to be appointed by the House of Parliament from
which the member is to be drawn.

(4) A person is not eligible to become a member of the ISC unless the person—

(a) is nominated for membership by the Prime Minister, and

(b) is not a Minister of the Crown.

(5) 15Before deciding whether to nominate a person for membership, the Prime
Minister must consult the Leader of the Opposition.

(6) A member of the ISC is to be the Chair of the ISC chosen by its members.

(7) Schedule 1 (which makes further provision about the ISC) has effect.

2 Main functions of the ISC

(1) The ISC may examine or otherwise oversee the expenditure, administration,
policy and operations of—

(a) 5the Security Service,

(b) the Secret Intelligence Service, and

(c) the Government Communications Headquarters.

(2) The ISC may examine or otherwise oversee such other activities of Her
Majesty’s Government in relation to intelligence or security matters as are set
10out in a memorandum of understanding.

(3) The ISC may, by virtue of subsection (1) or (2), consider any particular
operational matter but only so far as the ISC and the Prime Minister are
satisfied that—

(a) the matter—

(i) 15is not part of any ongoing intelligence or security operation, and

(ii) is of significant national interest, and

(b) the consideration of the matter is consistent with any principles set out
in, or other provision made by, a memorandum of understanding.

(4) A memorandum of understanding under this section—

(a) 20may include other provision about the ISC or its functions which is not
of the kind envisaged in subsection (2) or (3),

(b) must be agreed between the Prime Minister and the ISC, and

(c) may be altered (or replaced with another memorandum) with the
agreement of the Prime Minister and the ISC.

(5) 25The ISC must publish a memorandum of understanding under this section and
lay a copy of it before Parliament.

3 Reports of the ISC

(1) The ISC must make an annual report to Parliament on the discharge of its
functions.

(2) 30The ISC may make such other reports to Parliament as it considers appropriate
concerning any aspect of its functions.

(3) Before making a report to Parliament, the ISC must send a draft of it to the
Prime Minister.

(4) The ISC must exclude any matter from any report to Parliament if the Prime
35Minister, after consultation with the ISC, considers that the matter would be
prejudicial to the continued discharge of the functions of the Security Service,
the Secret Intelligence Service, the Government Communications
Headquarters or any person carrying out activities falling within section 2(2).

(5) A report by the ISC to Parliament must contain a statement as to whether any
40matter has been excluded from the report by virtue of subsection (4).

(6) The ISC must lay before Parliament any report made by it to Parliament.

(7) The ISC may make a report to the Prime Minister in relation to matters which
would be excluded by virtue of subsection (4) if the report were made to
Parliament.

4 Sections 1 to 3: interpretation

5In sections 1 to 3 and Schedule 1—

• “government department” means a department of Her Majesty’s
  Government but does not include—

  (a)

  the Security Service,

  (b)

  the Secret Intelligence Service, or

  (c)

  10the Government Communications Headquarters,

• “Her Majesty’s forces” has the same meaning as in the Armed Forces Act
  2006,

• “Her Majesty’s Government” means Her Majesty’s Government in the
  United Kingdom,

• 15“Leader of the Opposition” has the same meaning as in the Ministerial and
  other Salaries Act 1975,

• “Minister of the Crown” has the same meaning as in the Ministers of the
  Crown Act 1975,

• “notice” means notice in writing.

20Oversight by the Intelligence Services Commissioner

5 Additional review functions of the Commissioner

After section 59 of the Regulation of Investigatory Powers Act 2000
(Intelligence Services Commissioner) insert—

“59A Additional functions of the Intelligence Services Commissioner

(1) 25So far as directed to do so by the Prime Minister and subject to
subsection (2), the Intelligence Services Commissioner must keep
under review the carrying out of any aspect of the functions of—

(a) an intelligence service,

(b) a head of an intelligence service, or

(c) 30any part of Her Majesty’s forces, or of the Ministry of Defence,
so far as engaging in intelligence activities.

(2) Subsection (1) does not apply in relation to anything which is required
to be kept under review by the Interception of Communications
Commissioner or under section 59.

(3) 35The Prime Minister may give a direction under this section at the
request of the Intelligence Services Commissioner or otherwise.

(4) Directions under this section may, for example, include directions to
the Intelligence Services Commissioner to keep under review the
implementation or effectiveness of particular policies of the head of an
40intelligence service regarding the carrying out of any of the functions of
the intelligence service.

(5) The Prime Minister must publish, in a manner which the Prime
Minister considers appropriate, any direction under this section (and

any revocation of such a direction) except so far as it appears to the
Prime Minister that such publication would be contrary to the public
interest or prejudicial to—

(a) national security,

(b) 5the prevention or detection of serious crime,

(c) the economic well-being of the United Kingdom, or

(d) the continued discharge of the functions of any public authority
whose activities include activities that are subject to review by
the Intelligence Services Commissioner.

(6) 10In this section “head”, in relation to an intelligence service, means—

(a) in relation to the Security Service, the Director-General,

(b) in relation to the Secret Intelligence Service, the Chief, and

(c) in relation to GCHQ, the Director.”

Part 2 15Restrictions on disclosure of sensitive material

Closed material procedure: general

6 Proceedings in which court permits closed material applications

(1) The Secretary of State may apply to the court seised of relevant civil
proceedings for a declaration that the proceedings are proceedings in which a
20closed material application may be made to the court.

(2) The court must, on an application under subsection (1), make such a
declaration if the court 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
25another person (whether or not another party to the proceedings), and

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

(3) In deciding whether a party to the proceedings would be required to disclose
material, the court must ignore—

(a) 30the fact that there would be no requirement to disclose if—

(i) the material were withheld on grounds of public interest
immunity, or

(ii) the person concerned chose not to rely upon the material, and

(b) section 17(1) of the Regulation of Investigatory Powers Act 2000
35(exclusion for intercept material).

(4) A declaration under this section must identify the party or parties to the
proceedings whose disclosure or disclosures the court considers would be
damaging to the interests of national security (“a relevant person”).

(5) Before making an application under subsection (1), the Secretary of State must
40consider whether to make, or advise another person to make, a claim for public
interest immunity in relation to the material on which the application would
be based.

(6) Rules of court may—

(a) provide for notification to the Secretary of State by a party to relevant
civil proceedings, or by the court concerned, of proceedings to which a
declaration under this section may be relevant,

(b) provide for a stay or sist of relevant civil proceedings (whether on an
5application by a party to the proceedings or by the court concerned of
its own motion) where the Secretary of State is considering whether to
apply for a declaration under this section,

(c) provide for the Secretary of State, if not a party to proceedings in
relation to which there is a declaration under this section, to be joined
10as a party to the proceedings.

(7) In this section—

• “closed material application” means an application of the kind mentioned
  in section 7(1)(a),

• “relevant civil proceedings” means any proceedings (other than
  15proceedings in a criminal cause or matter) before—

  (a)

  the High Court,

  (b)

  the Court of Appeal, or

  (c)

  the Court of Session.

7 Determination by court of applications in section 6 proceedings

(1) 20Rules of court relating to any relevant civil proceedings in relation to which
there is a declaration under section 6 (“section 6 proceedings”) must secure—

(a) that a relevant person has the opportunity to make an application to the
court for permission not to disclose material otherwise than to—

(i) the court,

(ii) 25any person appointed as a special advocate, and

(iii) where the Secretary of State is not the relevant person but is a
party to the proceedings, the Secretary of State,

(b) that such an application is always considered in the absence of every
other party to the proceedings (and every other party’s legal
30representative),

(c) that the court is required to give permission for material not to be
disclosed if it considers that the disclosure of the material would be
damaging to the interests of national security,

(d) that, if permission is given by the court not to disclose material, it must
35consider requiring the relevant person to provide a summary of the
material to every other party to the proceedings (and every other
party’s legal representative),

(e) that the court is required to ensure that such a summary does not
contain material the disclosure of which would be damaging to the
40interests of national security.

(2) Rules of court relating to section 6 proceedings must secure that provision to
the effect mentioned in subsection (3) applies in cases where a relevant
person—

(a) does not receive the permission of the court to withhold material, but
45elects not to disclose it, or

(b) is required to provide another party to the proceedings with a
summary of material that is withheld, but elects not to provide the
summary.

(3) The court must be authorised—

(a) if it considers that the material or anything that is required to be
summarised might adversely affect the relevant person’s case or
support the case of another party to the proceedings, to direct that the
5relevant person—

(i) is not to rely on such points in that person’s case, or

(ii) is to make such concessions or take such other steps as the court
may specify, or

(b) in any other case, to ensure that the relevant person does not rely on the
10material or (as the case may be) on that which is required to be
summarised.

8 Appointment of special advocate

(1) The appropriate law officer may appoint a person to represent the interests of
a party in any section 6 proceedings from which the party (and any legal
15representative of the party) is excluded.

(2) A person appointed under subsection (1) is referred to in this section as
appointed as a “special advocate”.

(3) The “appropriate law officer” is—

(a) in relation to proceedings in England and Wales, the Attorney General,

(b) 20in relation to proceedings in Scotland, the Advocate General for
Scotland, and

(c) in relation to proceedings in Northern Ireland, the Advocate General
for Northern Ireland.

(4) A person appointed as a special advocate is not responsible to the party to the
25proceedings whose interests the person is appointed to represent.

(5) A person may be appointed as a special advocate only if—

(a) in the case of an appointment by the Attorney General, the person has
a general qualification for the purposes of section 71 of the Courts and
Legal Services Act 1990,

(b) 30in the case of an appointment by the Advocate General for Scotland, the
person is an advocate or a solicitor who has rights of audience in the
Court of Session or the High Court of Justiciary by virtue of section 25A
of the Solicitors (Scotland) Act 1980, and

(c) in the case of an appointment by the Advocate General for Northern
35Ireland, the person is a member of the Bar of Northern Ireland.

9 Saving for normal disclosure rules

Subject to sections 7, 8 and 10, rules of court relating to section 6 proceedings
must secure that the rules of disclosure otherwise applicable to those
proceedings continue to apply in relation to the disclosure of material by a
40relevant person.

10 General provision about section 6 proceedings

(1) A person making rules of court relating to section 6 proceedings must have
regard to the need to secure that disclosures of information are not made where
they would be damaging to the interests of national security.

(2) Rules of court relating to section 6 proceedings may make provision—

(a) about the mode of proof and about evidence in the proceedings,

(b) enabling or requiring the proceedings to be determined without a
hearing,

(c) 5about legal representation in the proceedings,

(d) enabling the proceedings to take place without full particulars of the
reasons for decisions in the proceedings being given to a party to the
proceedings (or to any legal representative of that party),

(e) enabling the court concerned to conduct proceedings in the absence of
10any person, including a party to the proceedings (or any legal
representative of that party),

(f) about the functions of a person appointed as a special advocate,

(g) enabling the court to give a party to the proceedings a summary of
evidence taken in the party’s absence.

(3) 15In subsection (2) references to a party to the proceedings do not include the
relevant person concerned and (if the Secretary of State is not the relevant
person but is a party to the proceedings) the Secretary of State.

(4) Proceedings on, or in relation to, an application under section 6(1) are to be
treated as section 6 proceedings for the purposes of sections 7 to 9, this section
20and section 11.

(5) Sections 7 to 9, this section and section 11 apply in relation to proceedings
treated as section 6 proceedings by subsection (4) as if the Secretary of State
were the relevant person.

11 Sections 6 to 10: interpretation

(1) 25In sections 6 to 10 and this section—

• “enactment” means an enactment whenever passed or made and
  includes—

  (a)

  an enactment contained in this Act,

  (b)

  an enactment contained in subordinate legislation within the
  30meaning of the Interpretation Act 1978,

  (c)

  an enactment contained in, or in an instrument made under, an
  Act of the Scottish Parliament,

  (d)

  an enactment contained in, or in an instrument made under,
  Northern Ireland legislation, and

  (e)

  35an enactment contained in, or in an instrument made under, a
  Measure or Act of the National Assembly for Wales,

• “the Human Rights Convention” means the Convention within the
  meaning of the Human Rights Act 1998 (see section 21(1) of that Act),

• “relevant civil proceedings” has the meaning given by section 6(7),

• 40“relevant person” has the meaning given by section 6(4) and includes any
  person treated as a relevant person by any enactment,

• “section 6 proceedings” has the meaning given by section 7(1) and
  includes any proceedings treated as section 6 proceedings by any
  enactment,

• 45“special advocate” has the meaning given by section 8(2),

and references to a party’s legal representative do not include a person
appointed as a special advocate.

(2) The Secretary of State may by order amend the definition of “relevant civil
proceedings” in section 6(7).

(3) The power to make an order under subsection (2)—

(a) may, in particular, be exercised so as to add or remove a court or
5tribunal,

(b) includes power to make supplementary, incidental, consequential,
transitional, transitory or saving provision (including provision
amending, repealing or otherwise modifying any enactment),

(c) is exercisable by statutory instrument which is not to be made unless a
10draft of the instrument has been laid before, and approved by a
resolution of, each House of Parliament.

(4) An order under subsection (2) which adds a tribunal to the definition of
“relevant civil proceedings” in section 6(7) may, in particular, amend any
provision of sections 6 to 10 and this section for the purpose of—

(a) 15explaining the meaning of “rules of court” in relation to a tribunal, and

(b) requiring or enabling provision of a particular description to be made
by such rules of court (including provision, about the composition of a
tribunal for the purposes of section 6 proceedings, which disapplies or
modifies an enactment).

(5) 20Nothing in sections 6 to 10 and this section (or in any provision made by virtue
of them)—

(a) restricts the power to make rules of court or the matters to be taken into
account when doing so,

(b) affects the common law rules as to the withholding, on grounds of
25public interest immunity, of any material in any proceedings, or

(c) is to be read as requiring a court or tribunal to act in a manner
inconsistent with Article 6 of the Human Rights Convention.

Closed material procedure: immigration

12 Certain exclusion, naturalisation and citizenship decisions

30After section 2B of the Special Immigration Appeals Commission Act 1997
(appeals against certain deprivation of citizenship decisions) insert—

“2C Jurisdiction: review of certain exclusion decisions

(1) Subsection (2) applies in relation to any direction about the exclusion of
a non-EEA national from the United Kingdom which—

(a) 35is made by the Secretary of State wholly or partly on the ground
that the exclusion from the United Kingdom of the non-EEA
national is conducive to the public good,

(b) is not subject to a right of appeal, and

(c) is certified by the Secretary of State as a direction that was made
40wholly or partly in reliance on information which, in the
opinion of the Secretary of State, should not be made public—

(i) in the interests of national security,

(ii) in the interests of the relationship between the United
Kingdom and another country, or

(iii) 45otherwise in the public interest.

(2) The non-EEA national to whom the direction relates may apply to the
Special Immigration Appeals Commission to set aside the direction.

(3) In determining whether the direction should be set aside, the
Commission must apply the principles which would be applied in
5judicial review proceedings.

(4) If the Commission decides that the direction should be set aside, it may
make any such order, or give any such relief, as may be made or given
in judicial review proceedings.

(5) In this section—

• 10“non-EEA national” means any person who is not a national of an
  EEA state,

and references in this section to the Secretary of State are to the
Secretary of State acting in person.

2D Jurisdiction: review of certain naturalisation and citizenship decisions

(1) 15Subsection (2) applies in relation to any decision of the Secretary of
State which—

(a) is either—

(i) a refusal to issue a certificate of naturalisation under
section 6 of the British Nationality Act 1981 to an
20applicant under that section, or

(ii) a refusal to grant an application of the kind mentioned
in section 41A of that Act (applications to register an
adult or young person as a British citizen etc.), and

(b) is certified by the Secretary of State as a decision that was made
25wholly or partly in reliance on information which, in the
opinion of the Secretary of State, should not be made public—

(i) in the interests of national security,

(ii) in the interests of the relationship between the United
Kingdom and another country, or

(iii) 30otherwise in the public interest.

(2) The applicant to whom the decision relates may apply to the Special
Immigration Appeals Commission to set aside the decision.

(3) In determining whether the decision should be set aside, the
Commission must apply the principles which would be applied in
35judicial review proceedings.

(4) If the Commission decides that the decision should be set aside, it may
make any such order, or give any such relief, as may be made or given
in judicial review proceedings.”

“Norwich Pharmacal” and similar jurisdictions

13 40Disclosure proceedings

(1) This section applies where, by way of civil proceedings, a person (“A”) seeks
the disclosure of information by another person (“B”) on the grounds that—

(a) wrongdoing by another person (“C”) has, or may have, occurred,