Justice and Security Bill [HL]

Session 2012 - 13
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Justice and Security Bill [HL]

Justice and Security Bill [HL]
commons AMENDMENTS
[The page and line references are to Bill 99, the bill as first printed for the Commons.]
Clause 1
1
Page 1, line 5, after “Committee” insert “of Parliament”
Clause 2
2
Page 2, line 13, leave out from “as” to end of line 19 and insert “—

(a)
the ISC and the Prime Minister are satisfied that the matter—

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

and

(ii)
is of significant national interest,

(b)
the Prime Minister has asked the ISC to consider the matter, or

(c)
the ISC’s consideration of the matter is limited to the consideration

of information provided voluntarily to the ISC (whether or not in

response to a request by the ISC) by—

(i)
the Security Service,

(ii)
the Secret Intelligence Service,

(iii)
the Government Communications Headquarters, or

(iv)
a government department.

(3A)
The ISC’s consideration of a particular operational matter under subsection

(3)(a) or (b) must, in the opinion of the ISC and the Prime Minister, be

consistent with any principles set out in, or other provision made by, a

memorandum of understanding.”
3
Page 2, line 22, leave out “(3)” and insert “(3A)”
Clause 6
4
Page 4, line 18, leave out from “may” to “make” in line 19
5
Page 4, line 20, at end insert—

HL Bill 88 55/2

2

“(1A)
The court may make such a declaration—

(a)
on the application of—

(i)
the Secretary of State (whether or not the Secretary of State

is a party to the proceedings), or

(ii)
any party to the proceedings, or

(b)
of its own motion.”
6
Page 4, line 21, leave out subsections (2) to (6) and insert—

“(1B)
The court may make such a declaration if it considers that the following

two conditions are met.

(1C)
The first condition is that—

(a)
a party to the proceedings would be required to disclose sensitive

material in the course of the proceedings to another person

(whether or not another party to the proceedings), or

(b)
a party to the proceedings would be required to make such a

disclosure were it not for one or more of the following—

(i)
the possibility of a claim for public interest immunity in

relation to the material,

(ii)
the fact that there would be no requirement to disclose if the

party chose not to rely on the material,

(iii)
section 17(1) of the Regulation of Investigatory Powers Act

2000 (exclusion for intercept material),

(iv)
any other enactment that 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.

(1D)
The second condition is that it is in the interests of the fair and effective

administration of justice in the proceedings to make a declaration.

(1E)
The two conditions are met if the court considers that they are met in

relation to any material that would be required to be disclosed in the course

of the proceedings (and an application under subsection (1A)(a) need not

be based on all of the material that might meet the conditions or on material

that the applicant would be required to disclose).

(1F)
The court must not consider an application by the Secretary of State under

subsection (1A)(a) unless it is satisfied that the Secretary of State has, before

making the application, considered whether to make, or advise another

person to make, a claim for public interest immunity in relation to the

material on which the application is based.

(1G)
A declaration under this section must identify the party or parties to the

proceedings who would be required to disclose the sensitive material (“a

relevant person”).”
7
Page 5, line 12, leave out “the Secretary of State” and insert “a person”
8
Page 5, line 15, after “section” insert “or proceedings for or about such a

declaration”
9
Page 5, line 18, leave out “the Secretary of State” and insert “a person”
10
Page 5, line 19, leave out “(1)” and insert “(1A)(a)”

3
11
Page 5, line 19, leave out “Secretary of State’s” and insert “person’s”
12
Page 5, line 20, leave out “all of the parties” and insert “every other person entitled

to make such an application in relation”
13
Page 5, line 22, leave out “Secretary of State” and insert “applicant”
14
Page 5, line 22, leave out from “inform” to first “of” in line 23 and insert “every

other such person”
15
Page 5, line 32, at end insert—

““sensitive material” means material the disclosure of which would be

damaging to the interests of national security.”
After Clause 6
16
Insert the following new Clause—

“Review and revocation of declaration under section 6

(1)
This section applies where a court seised of relevant civil proceedings has

made a declaration under section 6.

(2)
The court must keep the declaration under review, and may at any time

revoke it if it considers that the declaration is no longer in the interests of

the fair and effective administration of justice in the proceedings.

(3)
The court must undertake a formal review of the declaration once the pre-

trial disclosure exercise in the proceedings has been completed, and must

revoke it if it considers that the declaration is no longer in the interests of

the fair and effective administration of justice in the proceedings.

(4)
The court may revoke a declaration under subsection (2) or (3)—

(a)
on the application of—

(i)
the Secretary of State (whether or not the Secretary of State

is a party to the proceedings), or

(ii)
any party to the proceedings, or

(b)
of its own motion.

(5)
In deciding for the purposes of subsection (2) or (3) whether a declaration

continues to be in the interests of the fair and effective administration of

justice in the proceedings, the court must consider all of the material that

has been put before it in the course of the proceedings (and not just the

material on which the decision to make the declaration was based).

(6)
Rules of court must make provision—

(a)
as to how a formal review is to be conducted under subsection (3),

(b)
as to when the pre-trial disclosure exercise is to be considered to

have been completed for the purposes of subsection (3).

(7)
In relation to proceedings before the Court of Session—

(a)
the reference in subsection (3) to the completion of the pre-trial

disclosure exercise is a reference to the fixing of a hearing to

determine the merits of the proceedings, and

(b)
the reference in subsection (6)(b) to when the pre-trial disclosure

exercise is to be considered to have been completed is a reference to

4

what constitutes a hearing to determine the merits of the

proceedings.”
Clause 10
17
Page 7, line 31, leave out subsections (4) and (5) and insert—

“(4)
The following proceedings are to be treated as section 6 proceedings for the

purposes of sections 7 to 9, this section and sections (Reports on use of closed

material procedure) to 11—

(a)
proceedings on, or in relation to, an application for a declaration

under section 6,

(b)
proceedings on, or in relation to, a decision of the court to make a

declaration under that section of its own motion,

(c)
proceedings on, or in relation to, an application for a revocation

under section (Review and revocation of declaration under section 6),

and

(d)
proceedings on, or in relation to, a decision of the court to make a

revocation under that section of its own motion.

(5)
In proceedings treated as section 6 proceedings by virtue of subsection (4),

a relevant person, for the purposes of sections 7 to 9, this section and

sections (Reports on use of closed material procedure) to 11, is a person who

would be required to disclose sensitive material in the course of the

proceedings.”
After Clause 10
18
Insert the following new Clause—

“Reports on use of closed material procedure

(1)
The Secretary of State must—

(a)
prepare a report on the matters mentioned in subsection (2) for—

(i)
the period of twelve months beginning with the day on

which section 6 comes into force, and

(ii)
every subsequent twelve month period, and

(b)
lay a copy of each such report before Parliament.

(2)
The matters are—

(a)
the number of applications made during the reporting period—

(i)
by the Secretary of State under section 6(1A)(a)(i) or (Review

and revocation of declaration under section 6)(4)(a)(i), and

(ii)
by persons other than the Secretary of State under section

6(1A)(a)(ii) or (Review and revocation of declaration under

section 6)(4)(a)(ii),

(b)
the number of declarations made by the court under section 6(1),

and the number of revocations made by the court under section

(Review and revocation of declaration under section 6)(2) or (3), during

the reporting period—

(i)
in response to applications made by the Secretary of State

during the reporting period,

5

(ii)
in response to applications made by the Secretary of State

during previous reporting periods,

(iii)
in response to applications made by persons other than the

Secretary of State during the reporting period,

(iv)
in response to applications made by persons other than the

Secretary of State during previous reporting periods, and

(v)
of the court’s own motion,

(c)
the number of final judgments given in section 6 proceedings

during the reporting period which are closed judgments, and

(d)
the number of such judgments which are not closed judgments.

(3)
The report may also include such other matters as the Secretary of State

considers appropriate.

(4)
The duty under subsection (1) in relation to the preparation and laying of a

report must be carried out as soon as reasonably practicable after the end

of the twelve month period to which the report relates.

(5)
In this section—

“closed judgment” means a judgment that is not made available, or

fully available, to the public,

“final judgment”, in relation to section 6 proceedings, means a final

judgment to determine the proceedings.”
19
Insert the following new Clause—

“Review of sections 6 to 10

(1)
The Secretary of State must appoint a person to review the operation of

sections 6 to 10 (the “reviewer”).

(2)
The reviewer must carry out a review of the operation of sections 6 to 10 in

respect of the period of five years beginning with the day on which section

6 comes into force.

(3)
The review must be completed as soon as reasonably practicable after the

end of the period to which the review relates.

(4)
As soon as reasonably practicable after completing a review under this

section, the reviewer must send to the Secretary of State a report on its

outcome.

(5)
On receiving a report under subsection (4), the Secretary of State must lay

a copy of it before Parliament.

(6)
Before laying a copy of a report before Parliament under subsection (5), the

Secretary of State may, after consulting the reviewer, exclude from the copy

any part of the report that would, in the opinion of the Secretary of State,

be damaging to the interests of national security if it were included in the

copy laid before Parliament.

(7)
The Secretary of State may pay to the reviewer—

(a)
expenses incurred by the reviewer in carrying out functions under

this section, and

(b)
such allowances as the Secretary of State determines.”