Session 2012 - 13
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Other Bills before Parliament


 
 

 

Justice and Security Bill [HL]

MARSHALLED LIST OF AMENDMENTS TO BE MOVED ON CONSIDERATION

OF 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

 
 
HL Bill 88—I55/2

 
 

2

5

Page 4, line 20, at end insert—

 

“(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”).”

 

[As amendments to Commons Amendment 6]

 

LORD BEECHAM

6A

Line 2, at beginning insert “If the court considers that a fair determination of the

 
 

 
 

3

 
 

proceedings is not possible by any other means,”

 

LORD MACDONALD OF RIVER GLAVEN

6BParliamentary Star

Line 20, leave out subsection (1D) and insert—

 

“(1D)    

The second condition is that in the opinion of the court the potential harm

 

that disclosure would occasion to the interests of national security would

 

be greater than the damage which non-disclosure would inflict upon the

 

public interest in the fair and open administration of justice.”

 

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)”

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

 
 

 
 

4

 
 

(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

 

what constitutes a hearing to determine the merits of the

 

proceedings.”

 

[As amendments to Commons Amendment 16]

 

LORD BEECHAM

16A

Line 7, leave out “effective” and insert “open”

16B

Line 11, leave out “effective administration of justice in the proceedings” and insert

 

“open administration of justice”

16C

Line 19, leave out “effective administration of justice in the proceedings” and insert

 

“open administration of justice”

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

 
 

 
 

5

 
 

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,

 

(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,

 
 

 
 

6

 
 

“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.”

 

[As amendments to Commons Amendment 19]

 

LORD MARKS OF HENLEY-ON-THAMES

19A

Line 4, at end insert—

 

“(1A)    

Before appointing the reviewer under subsection (1), the Secretary of State

 

must consult—

 

(a)    

the Lord Chief Justice of England and Wales,

 

(b)    

the Lord President of the Court of Session, and

 

(c)    

the Lord Chief Justice of Northern Ireland.”

19B

Line 6, leave out “five” and insert “four”

19C

Line 7, at end insert “(the “first review period”) and must carry out a further review

 

at the end of each period of five years after the end of the first review period”

19D

At end insert—

 

“(8)    

Within one month after laying a copy of a report before Parliament under

 

subsection (5), the Secretary of State may, by order made by statutory

 
 

 
 

7

 
 

instrument (a “renewal order”), direct that sections 6 to 10 shall continue to

 

have effect after the passing of the order.

 

(9)    

A renewal order under this section may not be made unless a draft of it has

 

been laid before Parliament and approved by a resolution of each House.

 

(10)    

If no renewal order is made within 90 days after the Secretary of State has

 

laid a copy of a report before Parliament under subsection (5), sections 6 to

 

10 shall cease to have effect, except in relation to proceedings in which a

 

declaration under section 6(1) has already been made.

 

(11)    

In this section “90 days” means 90 days computed as provided for in section

 

7(1) of the Statutory Instruments Act 1946.”

 

LORD BEECHAM

19EParliamentary Star

At end insert—

 

“(8)    

Sections 6 to 11 of this Act shall expire at the end of the period of five years

 

commencing on the date of the coming into force of those sections, unless

 

they are extended by a resolution of each House of Parliament, provided

 

that—

 

(a)    

no such resolution may extend the court’s powers under sections 6

 

to 11 for a period of more than five years; and

 

(b)    

such extensions may be made by such resolutions every five years.”

Clause 11

20

Page 7, line 38, leave out “10” and insert “(Review of sections 6 to 10)”

21

Page 8, line 10, leave out “(4)” and insert “(1G)”

22

Page 8, line 14, at end insert—

 

““sensitive material” has the meaning given by section 6(9),”

23

Page 8, line 18, leave out “10” and insert “(Review of sections 6 to 10)”

Clause 15

24

Page 12, line 31, leave out “and 10” and insert “, 10 and (Review of sections 6 to 10)”

Clause 17

25

Page 14, line 1, leave out subsection (8)

Schedule 1

26

Page 16, line 3, at end insert—

 

    “(6)  

The ISC may take evidence on oath, and for that purpose may administer

 

oaths.”

27

Page 16, line 3, at end insert—

 
 

 
contents continue
 

© Parliamentary copyright
Revised 26 March 2013