(b) B was involved with the carrying out of the wrongdoing (whether
innocently or not), and

(c) the disclosure is reasonably necessary to enable redress to be obtained
or a defence to be relied on in connection with the wrongdoing.

(2) 5A court may not, in exercise of its residual disclosure jurisdiction, order the
disclosure of information sought (whether that disclosure would be to A or to
another person) if the information is sensitive information.

(3) “Sensitive information” means information—

(a) held by an intelligence service,

(b) 10obtained from, or held on behalf of, an intelligence service,

(c) derived in whole or part from information obtained from, or held on
behalf of, an intelligence service,

(d) relating to an intelligence service, or

(e) specified or described in a certificate issued by the Secretary of State, in
15relation to the proceedings, as information which B should not be
ordered to disclose.

(4) The Secretary of State may issue a certificate under subsection (3)(e) only if the
Secretary of State considers that it would be contrary to the public interest for
B to disclose—

(a) 20the information,

(b) whether the information exists, or

(c) whether B has the information.

(5) For the purposes of subsection (4) a disclosure is contrary to the public interest
if it would cause damage—

(a) 25to the interests of national security, or

(b) to the interests of the international relations of the United Kingdom.

(6) In this section—

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

  (a)

  30an Act of the Scottish Parliament,

  (b)

  Northern Ireland legislation, or

  (c)

  a Measure or Act of the National Assembly for Wales,

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

• 35“information” includes—

  (a)

  information contained in any form of document or stored in any
  other way, and

  (b)

  alleged information,

• “intelligence service” means—

  (a)

  40the Security Service,

  (b)

  the Secret Intelligence Service,

  (c)

  the Government Communications Headquarters, or

  (d)

  any part of Her Majesty’s forces, or of the Ministry of Defence,
  which engages in intelligence activities,

• 45“obtained” means obtained directly or indirectly,

Justice and Security BillPage 11

• “residual disclosure jurisdiction” means any jurisdiction to order the
  disclosure of information which is not specifically conferred as such a
  jurisdiction by or under an enactment.

(7) This section—

(a) 5enables the Secretary of State to issue a certificate under subsection
(3)(e) where the Secretary of State is B as it enables the Secretary of State
to issue such a certificate where another person is B, and

(b) does not restrict any other right or privilege that the Secretary of State
can claim in order to resist an application for the disclosure of
10information.

14 Review of certification

(1) Where the Secretary of State has issued a certificate under section 13(3)(e) in
relation to proceedings, any party to the proceedings may apply to the relevant
court to set aside the decision on the ground in subsection (2).

(2) 15That ground is that the Secretary of State ought not to have determined, in
relation to the information specified or described in the certificate, that a
disclosure by B as mentioned in section 13(4) would be contrary to the public
interest.

(3) In determining whether the decision to issue the certificate should be set aside
20on the ground in subsection (2), the relevant court must apply the principles
which would be applied in judicial review proceedings.

(4) Proceedings arising by virtue of this section are to be treated as section 6
proceedings for the purposes of sections 7 to 11.

(5) Sections 7 to 11 apply in relation to proceedings treated as section 6
25proceedings by subsection (4) as if—

(a) the Secretary of State were the relevant person, and

(b) the references to the interests of national security in sections 7 and 10
were references to the interests of national security or the interests of
the international relations of the United Kingdom.

(6) 30In this section “relevant court” means—

(a) if the court seised of the proceedings in relation to which the certificate
has been issued is a county court, the High Court,

(b) if the court seised of those proceedings is the sheriff, the Court of
Session, and

(c) 35in any other case, the court seised of those proceedings.

Part 3 General

15 Consequential and transitional etc. provision

(1) Schedules 2 and 3 (which make consequential and transitional provision) have
40effect.

(2) The Secretary of State may by order made by statutory instrument make such
transitional, transitory or saving provision as the Secretary of State considers

appropriate in connection with the coming into force of any provision of this
Act.

16 Commencement, extent and short title

(1) Sections 1 to 14 and 15(1) (including Schedules 1 to 3) come into force on such
5day as the Secretary of State may by order made by statutory instrument
appoint; and different days may be appointed for different purposes.

(2) Section 15(2) and this section come into force on the day on which this Act is
passed.

(3) Subject to subsection (4), this Act extends to England and Wales, Scotland and
10Northern Ireland.

(4) In Schedule 2—

(a) the amendments of the Senior Courts Act 1981 extend to England and
Wales only,

(b) the amendments of the Equality Act 2006 and the Equality Act 2010
15extend to England and Wales and Scotland only, and

(c) the amendment of the Race Relations (Northern Ireland) Order 1997
extends to Northern Ireland only.

(5) This Act may be cited as the Justice and Security Act 2012.

SCHEDULES

Section 1(7)

SCHEDULE 1 The Intelligence and Security Committee

Tenure of office

1 (1) 5Subject as follows, a person appointed as a member of the ISC during a
Parliament holds office for the duration of that Parliament.

(2) A member of the ISC vacates office if—

(a) the person ceases to be a member of the House of Parliament by
virtue of which the person is a member of the ISC,

(b) 10the person becomes a Minister of the Crown, or

(c) a resolution for the person’s removal is passed in the House of
Parliament by virtue of which the person is a member of the ISC.

(3) A member of the ISC may resign at any time by notice given to—

(a) the Chair of the ISC, or

(b) 15in the case of the member who is the Chair of the ISC, the Speaker of
the House of Parliament by virtue of which the person is a member
of the ISC.

(4) A person who ceases to be a member of the ISC is eligible for reappointment.

(5) Section 1(2) does not affect the validity of anything done between the
20occurrence of a vacancy and the vacancy being filled.

(6) Anything which, immediately before the end of a Parliament, is in the
process of being done or omitted to be done by or in relation to the ISC may
be continued by or in relation to the ISC in the new Parliament.

(7) Anything done or omitted to be done by or in relation to the ISC in a
25Parliament (or treated as so done or omitted) is, if in force or effective
immediately before the end of that Parliament, to have effect as if done or
omitted by or in relation to the ISC in the new Parliament so far as that is
required for continuing its effect in that Parliament.

Procedure

2 (1) 30The ISC may determine its own procedure; but this is subject to sub-
paragraphs (2) to (5).

(2) If on any matter there is an equality of voting among the members of the ISC,
the Chair of the ISC has a second or casting vote.

(3) The Chair of the ISC may appoint another member of the ISC to act, in the
35Chair’s absence, as the chair of the ISC at any meeting of it.

(4) A person appointed under sub-paragraph (3) does not enjoy the right
conferred on the Chair of the ISC by sub-paragraph (2).

(5) The quorum of the ISC is three.

Access to information

3 (1) 5If the Director-General of the Security Service, the Chief of the Secret
Intelligence Service or the Director of the Government Communications
Headquarters is asked by the ISC in the exercise of its functions to disclose
any information, then, as to the whole or any part of the information which
is sought, that person must either—

(a) 10arrange for it to be made available to the ISC subject to and in
accordance with a memorandum of understanding under section 2,
or

(b) inform the ISC that the information cannot be disclosed because the
Secretary of State has decided that it should not be disclosed.

(2) 15If the ISC in the exercise of its functions asks a government department or
any part of a government department to disclose information, then, as to the
whole or any part of the information which is sought, the relevant Minister
of the Crown must either—

(a) arrange for it to be made available to the ISC subject to and in
20accordance with a memorandum of understanding under section 2,
or

(b) inform the ISC that the information cannot be disclosed because the
Minister of the Crown has decided that it should not be disclosed.

(3) A Minister of the Crown may decide under sub-paragraph (1)(b) or (2)(b)
25that information should not be disclosed only if the Minister considers
that—

(a) it is—

(i) sensitive information (as defined in paragraph 4), and

(ii) information which, in the interests of national security,
30should not be disclosed to the ISC, or

(b) it is information of such a nature that, if the Minister were requested
to produce it before a Departmental Select Committee of the House
of Commons, the Minister would consider (on grounds which were
not limited to national security) it proper not to do so.

(4) 35The disclosure of information to the ISC in accordance with sub-paragraph
(1) 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.

(5) 40In this paragraph “relevant Minister of the Crown”, in relation to a request
for information, means—

(a) such Minister of the Crown as is identified, for the purposes of
requests of that description, in a memorandum of understanding
under section 2, or

(b) 45if no Minister of the Crown is so identified, any Minister of the
Crown.

Sensitive information

4 The following information is sensitive information for the purposes of
paragraph 3(3)(a)—

(a) information which might lead to the identification of, or provide
5details of, sources of information, other assistance or operational
methods available to—

(i) the Security Service,

(ii) the Secret Intelligence Service,

(iii) the Government Communications Headquarters, or

(iv) 10any part of a government department, or any part of Her
Majesty’s forces, which is engaged in intelligence or security
activities,

(b) information about particular operations which have been, are being
or are proposed to be undertaken in pursuance of any of the
15functions of the persons mentioned in paragraph (a)(i) to (iv),

(c) information provided by, or by an agency of, the Government of a
country or territory outside the United Kingdom where that
Government does not consent to the disclosure of the information.

Section 15(1)

SCHEDULE 2 20Consequential provision

Part 1 Oversight of intelligence and security activities

Intelligence Services Act 1994 (c. 13)1994 (c. 13)

1 The following provisions of the Intelligence Services Act 1994 are repealed—

(a) 25section 10 (the Intelligence and Security Committee),

(b) section 11(1)(c) (the definition of “Minister of the Crown”), and

(c) Schedule 3 (further provision about the Intelligence and Security
Committee).

Northern Ireland Act 1998 (c. 47)1998 (c. 47)

2 30In section 69B(1)(a) of the Northern Ireland Act 1998 (disregarding notice of
the Northern Ireland Human Rights Commission where it requires the
disclosure of sensitive information) for “paragraph 4 of Schedule 3 to the
Intelligence Services Act 1994 (c. 13)1994 (c. 13)” substitute “paragraph 4 of Schedule 1
to the Justice and Security Act 2012”.

35Regulation of Investigatory Powers Act 2000 (c. 23)2000 (c. 23)

3 In section 60(1) of the Regulation of Investigatory Powers Act 2000 (duty to
disclose documents and provide information to the Intelligence Services
Commissioner) for “section 59” substitute “sections 59 and 59A”.

Equality Act 2006 (c. 3)2006 (c. 3)

4 In paragraph 14(1)(a) of Schedule 2 to the Equality Act 2006 (disregarding
notice of the Commission for Equality and Human Rights where it requires
the disclosure of sensitive information) for “paragraph 4 of Schedule 3 to the
5Intelligence Services Act 1994 (c. 13)1994 (c. 13)” substitute “paragraph 4 of Schedule 1
to the Justice and Security Act 2012”.

Part 2 Closed material procedure

Judicature (Northern Ireland) Act 1978 (c. 23)1978 (c. 23)

5 (1) 10Section 62 of the Judicature (Northern Ireland) Act 1978 (trial with and
without jury) is amended as follows.

(2) In subsection (2)—

(a) at the end of paragraph (c), the word “or” is repealed, and

(b) after paragraph (c) insert—

“(ca) 15will involve section 6 proceedings; or”.

(3) After subsection (4) insert—

“(4A) An action in the High Court which by virtue of subsection (1) or (4)
is being, or is to be, tried with a jury may, at any stage in the
proceedings, be tried without a jury if the court concerned—

(a) 20is of opinion that the action involves, or will involve, section
6 proceedings; and

(b) in its discretion orders the action to be tried without a jury.

(4B) Where the court makes an order under subsection (4A)(b), it may
make such other orders as it considers appropriate (including an
25order dismissing the jury).”

(4) After subsection (7) insert—

“(8) In this section “section 6 proceedings” has the meaning given by
section 11(1) of the Justice and Security Act 2012 (certain civil
proceedings in which closed material applications may be made).”

30Senior Courts Act 1981 (c. 54)1981 (c. 54)

6 (1) Section 69 of the Senior Courts Act 1981 (trial by jury) is amended as follows.

(2) In subsection (1), at the end, insert “or unless the court is of opinion that the
trial will involve section 6 proceedings”.

(3) After subsection (3) insert—

“(3A) 35An action in the Queen’s Bench Division which by virtue of
subsection (1) or (3) is being, or is to be, tried with a jury may, at any
stage in the proceedings, be tried without a jury if the court
concerned—

(a) is of opinion that the action involves, or will involve, section
406 proceedings, and

(b) in its discretion orders the action to be tried without a jury.

(3B) Where the court makes an order under subsection (3A)(b), it may
make such other orders as it considers appropriate (including an
order dismissing the jury).”

(4) In subsection (4) for “(3)” substitute “(3B)”.

(5) 5After subsection (5) insert—

“(6) In this section “section 6 proceedings” has the meaning given by
section 11(1) of the Justice and Security Act 2012 (certain civil
proceedings in which closed material applications may be made).”

Special Immigration Appeals Commission Act 1997 (c. 68)1997 (c. 68)

7 (1) 10The Special Immigration Appeals Commission Act 1997 is amended as
follows.

(2) After section 6 (appointment of person to represent appellant’s interests)
insert—

“6A Procedure in relation to jurisdiction under sections 2C and 2D

(1) 15Sections 5 and 6 apply in relation to reviews under section 2C or 2D
as they apply in relation to appeals under section 2 or 2B.

(2) Accordingly—

(a) references to appeals are to be read as references to reviews
(and references to appeals under section 2 or 2B are to be read
20as references to reviews under section 2C or 2D), and

(b) references to an appellant are to be read as references to an
applicant under section 2C(2) or (as the case may be) 2D(2).”

(3) After section 7(2) (appeals from the Commission) insert—

“(2A) Where the Commission has made a final determination of a review
25under section 2C or 2D, any party to the review may bring an appeal
against that determination to the appropriate appeal court.”

Race Relations (Northern Ireland) Order 1997 (S.I. 1997/869 (N.I.6)S.I. 1997/869 (N.I.6))

8 In Article 54A of the Race Relations (Northern Ireland) Order 1997 (claims
under Article 20A in immigration cases), at the end, insert—

“(6) 30This Article applies in relation to reviews under section 2D of the
1997 Act as it applies in relation to appeals under that Act.”

Regulation of Investigatory Powers Act 2000 (c. 23)2000 (c. 23)

9 (1) Section 18 of the Regulation of Investigatory Powers Act 2000 (exclusion of
intercepted communications etc. from legal proceedings: exceptions) is
35amended as follows.

(2) In subsection (1)—

(a) at the end of paragraph (e), the word “or” is repealed, and

(b) after paragraph (f) insert “, or

(g) any section 6 proceedings within the meaning given
40by section 11(1) of the Justice and Security Act 2012

(certain civil proceedings in which closed material
applications may be made).”

(3) In subsection (2)—

(a) in the opening words, for “(f)” substitute “(g)”,

(b) 5in paragraph (a)—

(i) in sub-paragraph (i), after “appellant” insert “or (as the case
may be) applicant”,

(ii) in sub-paragraph (ii), after “appellant” insert “or applicant”,
and

(iii) 10at the end, the word “or” is repealed, and

(c) after paragraph (b) insert—

“(c) in the case of proceedings falling within paragraph
(g) where the only relevant person is the Secretary of
State, to—

(i) 15a person, other than the Secretary of State,
who is or was a party to the proceedings; or

(ii) any person who for the purposes of the
proceedings (but otherwise than by virtue of
appointment as a special advocate) represents
20a person falling within sub-paragraph (i); or

(d) in the case of proceedings falling within paragraph
(g) where the Secretary of State is not the only
relevant person or is not a relevant person but is a
party to the proceedings, to—

(i) 25a person, other than the relevant person
concerned or the Secretary of State, who is or
was a party to the proceedings; or

(ii) any person who for the purposes of the
proceedings (but otherwise than by virtue of
30appointment as a special advocate) represents
a person falling within sub-paragraph (i).”

(4) After subsection (2) insert—

“(2A) In subsection (2)(c) and (d) “relevant person”, in relation to
proceedings falling within subsection (1)(g), has the meaning given
35by section 11(1) of the Justice and Security Act 2012.”

Equality Act 2010 (c. 15)2010 (c. 15)

10 In section 115 of the Equality Act 2010 (immigration cases), at the end,
insert—

“(8) This section applies in relation to reviews under section 2D of the
40Special Immigration Appeals Commission Act 1997 as it applies in
relation to appeals under the immigration provisions.”

Section 15(1)

SCHEDULE 3 Transitional provision

Part 1 Oversight of intelligence and security activities

1 (1) 5The persons who, immediately before the coming into force of section 1(1),
were members of the previous Intelligence and Security Committee become,
on the coming into force of section 1(1), members of the new Intelligence and
Security Committee.

(2) The person who, immediately before the coming into force of section 1(1),
10was the Chairman of the previous Intelligence and Security Committee
becomes, on the coming into force of section 1(1), the Chair of the new
Intelligence and Security Committee.

(3) The new Intelligence and Security Committee may have access to
documents or other information provided or belonging to the previous
15Intelligence and Security Committee.

(4) In this paragraph—

• “the new Intelligence and Security Committee” means the Intelligence
  and Security Committee established under section 1 of this Act,

• “the previous Intelligence and Security Committee” means the
  20Intelligence and Security Committee established under section 10 of
  the Intelligence Services Act 1994.

Part 2 Closed material procedure

2 Sections 6 to 11, and paragraphs 5, 6 and 9 of Schedule 2 (other than
25paragraph 9(3)(b)(i) and (ii)), apply in relation to proceedings begun, but not
finally determined, before the coming into force of section 6 (in addition to
proceedings begun on or after the coming into force of that section).

3 (1) The first time after the passing of this Act that rules of court are made in
exercise of the powers conferred by sections 6 to 11 in relation to proceedings
30in England and Wales or in Northern Ireland before a court of a particular
description, the rules (together with any related rules of court) may be made
by the Lord Chancellor instead of by the person who would otherwise make
them.

(2) Before making rules of court under sub-paragraph (1), the Lord Chancellor
35must consult—

(a) in relation to rules applicable to proceedings in England and Wales,
the Lord Chief Justice of England and Wales, and

(b) in relation to rules applicable to proceedings in Northern Ireland, the
Lord Chief Justice of Northern Ireland.

(3) 40But the Lord Chancellor is not required to undertake any other consultation
before making the rules.

(4) A requirement to consult under sub-paragraph (2) may be satisfied by
consultation that took place wholly or partly before the passing of this Act.