Justice and Security Bill (HL Bill 56)

A

BILL

[AS AMENDED ON REPORT]

TO

Provide for oversight of the Security Service, the Secret Intelligence Service,
the Government Communications Headquarters and other activities relating
to intelligence or security matters; to make provision about closed material
procedure in relation to certain civil proceedings; to prevent the making of
certain court orders for the disclosure of sensitive information; and for
connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

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.

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(5) Before 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 5Main functions of the ISC

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

(a) the Security Service,

(b) the Secret Intelligence Service, and

(c) 10the 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
out in a memorandum of understanding.

(3) The ISC may, by virtue of subsection (1) or (2), consider any particular
15operational matter but only so far as the ISC and the Prime Minister are
satisfied that—

(a) the matter—

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

(ii) is of significant national interest, and

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

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

3 30Reports of the ISC

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

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

(3) 35Before making a report to Parliament, the ISC must send it to the Prime
Minister.

(4) The ISC must exclude any matter from any report to Parliament if the Prime
Minister, after consultation with the ISC, considers that the matter would be
prejudicial to the continued discharge of the functions of the Security Service,
40the Secret Intelligence Service, the Government Communications
Headquarters or any person carrying out activities falling within section 2(2).

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(5) A report by the ISC to Parliament must contain a statement as to whether any
matter 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
5would be excluded by virtue of subsection (4) if the report were made to
Parliament.

4 Sections 1 to 3: interpretation

In sections 1 to 3 and Schedule 1—

  • “government department” means a department of Her Majesty’s
    10Government but does not include—

    (a)

    the Security Service,

    (b)

    the Secret Intelligence Service, or

    (c)

    the Government Communications Headquarters,

  • “Her Majesty’s forces” has the same meaning as in the Armed Forces Act
    152006,

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

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

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

  • “notice” means notice in writing.

Oversight by the Intelligence Services Commissioner

5 Additional review functions of the Commissioner

25After section 59 of the Regulation of Investigatory Powers Act 2000
(Intelligence Services Commissioner) insert—

59A Additional functions of the Intelligence Services Commissioner

(1) So far as directed to do so by the Prime Minister and subject to
subsection (2), the Intelligence Services Commissioner must keep
30under review the carrying out of any aspect of the functions of—

(a) an intelligence service,

(b) a head of an intelligence service, or

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

(2) 35Subsection (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) The Prime Minister may give a direction under this section at the
request of the Intelligence Services Commissioner or otherwise.

(4) 40Directions 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

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intelligence 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
5any 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) the prevention or detection of serious crime,

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

(a) 15in 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 Disclosure of sensitive material

20Closed material procedure: general

6 Proceedings in which court permits closed material applications

(1) The court seised of relevant civil proceedings may, on application of either
party or of its own motion, make a declaration that the proceedings are
proceedings in which a closed material application may be made to the court.

(2) 25The court may 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
another person (whether or not another party to the proceedings),

(b) such a disclosure would be damaging to the interests of national
30security,

(c) 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, and

(d) a fair determination of the proceedings is not possible by any other
35means.

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

(a) section 17(1) of the Regulation of Investigatory Powers Act 2000
(exclusion for intercept material), and

(b) 40any 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.

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(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
5consider 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) Before making a declaration under subsection (2), the court must consider
whether a claim for public interest immunity could have been made in relation
10to the material.

(7) 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) 15provide for a stay or sist of relevant civil proceedings (whether on an
application 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
20relation to which there is a declaration under this section, to be joined
as a party to the proceedings.

(8) 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
25make 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.

(9) In this section—

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

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

    (a)

    the High Court,

    (b)

    35the Court of Appeal,

    (c)

    the Court of Session, or

    (d)

    the Supreme Court.

7 Determination by court of applications in section 6 proceedings

(1) Rules of court relating to any relevant civil proceedings in relation to which
40there 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) any person appointed as a special advocate, and

(iii) 45where the Secretary of State is not the relevant person but is a
party to the proceedings, the Secretary of State,

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

(c) that the court is required to give permission for material not to be
5disclosed 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
consider requiring the relevant person to provide a summary of the
material to every other party to the proceedings (and every other
10party’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
interests of national security.

(2) Rules of court relating to section 6 proceedings must secure that provision to
15the 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
elects not to disclose it, or

(b) is required to provide another party to the proceedings with a
20summary 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
25support the case of another party to the proceedings, to direct that the
relevant 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) 30in any other case, to ensure that the relevant person does not rely on the
material 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
35a party in any section 6 proceedings from which the party (and any legal
representative 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) 40in relation to proceedings in England and Wales, the Attorney General,

(b) in 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) 45A person appointed as a special advocate is not responsible to the party to the
proceedings whose interests the person is appointed to represent.

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

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(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) in the case of an appointment by the Advocate General for Scotland, the
5person 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
Ireland, the person is a member of the Bar of Northern Ireland.

9 10Saving 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
relevant person.

10 15General 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) 20about the mode of proof and about evidence in the proceedings,

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

(c) about legal representation in the proceedings,

(d) enabling the proceedings to take place without full particulars of the
25reasons 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
any person, including a party to the proceedings (or any legal
representative of that party),

(f) 30about 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) In 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
35person 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
and section 11.

(5) Sections 7 to 9, this section and section 11 apply in relation to proceedings
40treated as section 6 proceedings by subsection (4) as if the Secretary of State
were the relevant person.

11 Sections 6 to 10: interpretation

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

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  • “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
    5meaning 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)

    10an 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(9),

  • 15“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,

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

(a) 25restricts 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
public 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
30inconsistent with Article 6 of the Human Rights Convention.

Closed material procedure: immigration

12 Certain exclusion, naturalisation and citizenship decisions

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

2C 35Jurisdiction: 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) is made by the Secretary of State wholly or partly on the ground
that the exclusion from the United Kingdom of the non-EEA
40national 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
wholly or partly in reliance on information which, in the
opinion of the Secretary of State, should not be made public—

(i) 45in the interests of national security,

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

(iii) otherwise in the public interest.

(2) The non-EEA national to whom the direction relates may apply to the
5Special 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
judicial review proceedings.

(4) If the Commission decides that the direction should be set aside, it may
10make any such order, or give any such relief, as may be made or given
in judicial review proceedings.

(5) In this section—

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

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

(a) 20is either—

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

(ii) a refusal to grant an application of the kind mentioned
25in 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
wholly or partly in reliance on information which, in the
opinion of the Secretary of State, should not be made public—

(i) 30in the interests of national security,

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

(iii) otherwise in the public interest.

(2) The applicant to whom the decision relates may apply to the Special
35Immigration 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
judicial review proceedings.

(4) If the Commission decides that the decision should be set aside, it may
40make any such order, or give any such relief, as may be made or given
in judicial review proceedings.