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Justice and Security BillPage 10

Closed material procedure: employment

13 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
5amended 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
10proceedings 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)S.I. 1996/1921 (N.I. 18))
15(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
20security),

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) 25the 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) 30a 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) 35in 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
40proceedings 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
45that 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

Justice and Security BillPage 11

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
5appointment as a special advocate) represents
that person;.

“Norwich Pharmacal” and similar jurisdictions

14 Disclosure proceedings

(1) This section applies where, by way of civil proceedings, a person (“A”) seeks
10the disclosure of information by another person (“B”) on the grounds that—

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

(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
15or a defence to be relied on in connection with the wrongdoing.

(2) A 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) 20held by an intelligence service,

(b) obtained 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) 25specified 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.

(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
30B to disclose—

(a) the 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
35if it would cause damage—

(a) to the interests of national security, or

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

(6) In this section—

(7) 15This section—

(a) enables 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
20can claim in order to resist an application for the disclosure of
information.

15 Review of certification

(1) Where the Secretary of State has issued a certificate under section 14(3)(e) in
relation to proceedings, any party to the proceedings may apply to the relevant
25court to set aside the decision on the ground in subsection (2).

(2) That 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 14(4) would be contrary to the public
interest.

(3) 30In determining whether the decision to issue the certificate should be set aside
on 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) 35Sections 7 to 11 apply in relation to proceedings treated as section 6
proceedings 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
40the international relations of the United Kingdom.

(6) In 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
45Session, and

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

Justice and Security BillPage 13

Part 3 General

16 Consequential and transitional etc. provision

(1) Schedules 2 and 3 (which make consequential and transitional provision) have
5effect.

(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.

17 10Commencement, extent and short title

(1) The following provisions—

(a) section 1 and Schedule 1,

(b) sections 2 to 15,

(c) section 16(1) (except so far as relating to paragraph 4 of Schedule 3),

(d) 15Schedule 2, and

(e) Schedule 3 (other than paragraph 4 of that Schedule),

come into force on such day as the Secretary of State may by order made by
statutory instrument appoint; and different days may be appointed for
different purposes.

(2) 20The following provisions—

(a) section 16(1) so far as relating to paragraph 4 of Schedule 3,

(b) paragraph 4 of Schedule 3,

(c) section 16(2), and

(d) this section,

25come into force on the day on which this Act is passed.

(3) Subject to subsections (4) to (6), this Act extends to England and Wales,
Scotland and Northern Ireland.

(4) In Schedule 2—

(a) the amendments of the Senior Courts Act 1981 extend to England and
30Wales only,

(b) the amendments of the Equality Act 2006 and the Equality Act 2010
extend 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) 35Her 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.

(6) An Order under subsection (5) may, in particular, include (with or without
modifications) transitional provision of the kind permitted by paragraph 4 of
40Schedule 3.

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

Justice and Security BillPage 14

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.

Justice and Security BillPage 15

(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) 35In deciding for the purposes of sub-paragraph (3)(b) whether it would be
proper not to disclose information, the Minister must have regard to any
guidance issued by a Minister of the Crown or a government department
concerning the provision of evidence by civil servants to Select Committees.

(5) The disclosure of information to the ISC in accordance with sub-paragraph
40(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.

(6) In this paragraph “relevant Minister of the Crown”, in relation to a request
45for 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

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(b) if 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
5paragraph 3(3)(a)

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

(i) the Security Service,

(ii) 10the Secret Intelligence Service,

(iii) the Government Communications Headquarters, or

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

(b) 15information about particular operations which have been, are being
or are proposed to be undertaken in pursuance of any of the
functions 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
20Government does not consent to the disclosure of the information.

Section 16(1)

SCHEDULE 2 Consequential provision

Part 1 Oversight of intelligence and security activities

25Intelligence Services Act 1994 (c. 13)1994 (c. 13)

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

(a) section 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
30Committee).

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

2 In 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
35Intelligence Services Act 1994 (c. 13)1994 (c. 13)” substitute “paragraph 4 of Schedule 1
to the Justice and Security Act 2012”.

Justice and Security BillPage 17

Regulation 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”.

5Equality 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
Intelligence Services Act 1994 (c. 13)1994 (c. 13)” substitute “paragraph 4 of Schedule 1
10to the Justice and Security Act 2012”.

Part 2 Closed material procedure

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

5 (1) Section 62 of the Judicature (Northern Ireland) Act 1978 (trial with and
15without 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) will involve section 6 proceedings; or.

(3) 20After 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) is of opinion that the action involves, or will involve, section
256 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
order dismissing the jury).

(4) 30After 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).

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

6 (1) 35Section 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”.

Justice and Security BillPage 18

(3) After subsection (3) insert—

(3A) An 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
5concerned—

(a) is 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.

(3B) Where the court makes an order under subsection (3A)(b), it may
10make such other orders as it considers appropriate (including an
order dismissing the jury).

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

(5) After subsection (5) insert—

(6) In this section “section 6 proceedings” has the meaning given by
15section 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) The Special Immigration Appeals Commission Act 1997 is amended as
follows.

(2) 20After section 6 (appointment of person to represent appellant’s interests)
insert—

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

(1) Sections 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) 25Accordingly—

(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
as references to reviews under section 2C or 2D), and

(b) references to an appellant are to be read as references to an
30applicant 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
under section 2C or 2D, any party to the review may bring an appeal
against that determination to the appropriate appeal court.

35Race 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) This Article applies in relation to reviews under section 2D of the
1997 Act as it applies in relation to appeals under that Act.

Justice and Security BillPage 19

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
amended as follows.

(2) 5In 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
by section 11(1) of the Justice and Security Act 2012
10(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) in paragraph (a)—

(i) 15in 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) at the end, the word “or” is repealed, and

(c) 20after 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) a person, other than the Secretary of State,
25who 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
a person falling within sub-paragraph (i); or

(d) 30in 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) a person, other than the relevant person
35concerned 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
appointment as a special advocate) represents
40a 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
by section 11(1) of the Justice and Security Act 2012.

45Equality Act 2010 (c. 15)2010 (c. 15)

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

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