Session 2012-13
JUSTICE AND SECURITY BILL [HL]
These notes relate to the Commons Amendments to the Justice and Security Bill [HL]
as brought from the House of Commons on 11th March 2013 [HL Bill 88]
Explanatory Notes
INTRODUCTION
1.These Explanatory Notes relate to the Commons Amendments to the Justice and Security Bill [HL], as brought from the House of Commons on 11th March 2013. They have been prepared by the Cabinet Office in order to assist the reader of the Bill and the Commons Amendments and to help inform debate on the Commons Amendments. They do not form part of the Bill and have not been endorsed by Parliament.
2.These Notes, like the Commons Amendments themselves, refer to HL Bill 99, the Bill as first printed for the Commons.
3.These Notes need to be read in conjunction with the Commons Amendments and the text of the Bill. They are not, and are not meant to be, a comprehensive description of the effect of the Commons Amendments.
4.All the Commons Amendments were in the name of the Minister or supported by the Government.
COMMENTARY ON COMMONS AMENDMENTS
Commons Amendment 1, 41, 43 and 45
5.The effect of Commons Amendment 1 would be to change the name of the Committee created by Clause 1 from the "Intelligence and Security Committee" to the "Intelligence and Security Committee of Parliament". This change would make clear the Parliamentary nature of the Committee. Commons Amendments 41, 43 and 45 are consequential on Commons Amendment 1.
Commons Amendments 2, 3 and 28 to 31
6.The effect of Commons Amendment 2 would be to create two additional routes by which the ISC may consider particular operational matters. There would therefore be three routes altogether by which the Committee may consider particular operational matters.
7.The first route is based on the criteria for consideration of particular operational matters already in the Bill: where the Committee and the Prime Minister are satisfied that the matter is not part of any ongoing intelligence or security operation and is of significant national interest (see paragraph (a) inserted into clause 3(2) by amendment 2) and the consideration of the matter is consistent with any principles set out in, or with any other provision made by, the Memorandum of Understanding (see subsection (3A) inserted into clause 3).
8.The second route would be where the Prime Minister has asked the Committee to consider the matter (see paragraph (b) inserted into clause 3(2) by amendment 2) and the consideration of the matter would be consistent with any principles set out in, or with any other provision made by, the Memorandum of Understanding (see subsection (3A)).
9.The third route would be where the Committee’s consideration of the matter is limited to the consideration of information provided voluntarily to the Committee by the Secret Intelligence Service, the Security Service, the Government Communications Headquarters (together, the "Agencies") or a government department (see paragraph (c) inserted into clause 3(2) by amendment 2). Amendment 2 would make clear that information could be provided for these purposes in response to a request by the Committee as well as at the initiative of the relevant department.
10. Commons Amendment 3 is consequential upon Commons Amendment 2.
11.Commons Amendment 28 would make the Committee’s powers to require the Agencies or other government departments to provide it with information on operational matters (see paragraph 3 of Schedule 1) available for the first route and the second route, but not for the third route. Amendments 29 to 31 would make minor drafting changes, consequential on Amendment 28.
Commons Amendments 4 and 5
12.Clause 6 makes provision about who may apply for a declaration permitting closed material applications in civil proceedings, and when such an application may be granted.
13.The effect of Commons Amendments 4 and 5 would be to permit the Secretary of State, whether or not a party to the proceedings, to apply for a closed material procedure (CMP) declaration as well as permitting any party to the proceedings to apply or the court to make a declaration of its own motion.
Commons Amendment 6
14.Commons Amendment 6 would set out two new conditions which must be met in the process of application for a CMP declaration. The first condition is that a party to the proceedings would be required to be disclose sensitive material in the course of the proceedings (or would be so required but for certain litigation rules, such as the continuing availability of PII). It allows for the following permutations of applications for a CMP: 1) the Secretary of State, as a party to the proceedings, applies for a declaration in respect of sensitive material which he/she would be required to disclose; 2) the Secretary of State, as a party to the proceedings, applies for a declaration in respect of sensitive material which another party would be required to disclose; 3) the Secretary of State, as a non-party, applies for a declaration in respect of sensitive material which a party to the proceedings would be required to disclose; 4) a party to proceedings (other than the Secretary of State) applies for a declaration in respect of sensitive material which he/she would be required to disclose; 5) the court makes a declaration of its own motion in respect of of sensitive material which a party would be required to disclose; and (6) a party to proceedings (other than the Secretary of State) applies for a declaration in respect of sensitive material which another party would be required to disclose.
15.The second condition contained in Commons Amendment 6 (at subsection (1D)) would require the court to consider whether or not a CMP declaration would be in the interests of the fair and effective administration of justice in the proceedings as a condition for granting a CMP. Amendment 6 would also have the effect of requiring the court, before considering an application from the Secretary of State for a CMP declaration, to be satisfied that the Secretary of State has first considered whether to make, or advise another person to make, a claim for public interest immunity for the material on which the application is based (see subsection (1F)).
Commons Amendments 7 to 14 and 21
16. Amendments 7 to 14 and 21 are consequential on amendments 4 to 6.
Commons Amendments 15 and 22
17.Commons Amendment 15 is also consequential on Commons Amendment 6, in that it would define ‘"sensitive material" for the purposes of the new provisions that would be inserted by amendment 6. "Sensitive material" would be defined to mean "material the disclosure of which would be damaging to the interests of national security." This is in fact just a technical amendment which would maintain the position on the face of the Bill that in the context of an application for a declaration only material that would damage national security if disclosed could be heard in a CMP. Amendment 22 is consequential on amendment 15.
Commons Amendment 16
18.Commons Amendment 16 would insert a new clause "Review and revocation of declaration under section 6" into the Bill. This clause would make explicit the judge’s power – which can be exercised at any stage - to review, and in appropriate cases revoke, a CMP declaration. The clause would place a duty on the court to review a declaration at the end of the pre-trial disclosure phase (or the fixing of a hearing to determine the merits of the proceedings in relation to proceedings before the Court of Session). If at any stage the court considers that a declaration is no longer in the interest of the fair and effective administration of justice in the proceedings, the court must revoke it.
Commons Amendment 17
19.Commons Amendment 17 would serve two principal purposes.
20. First, it would mean that proceedings where the court grants a declaration under clause 6 of its own motion are treated in the same ways as proceedings where a declaration is granted following an application (see subsection (4)(a) and (b)). In both cases, those initial proceedings on whether a declaration should be granted would be treated as section 6 proceedings (meaning that sensitive material could be protected by a CMP).
21. Secondly, this amendment would provide that all proceedings relating to the revocation of a CMP declaration are treated as section 6 proceedings for the purposes of clauses 7 to 11 (see subsection (4)(c) and (d)). This is principally intended to cover circumstances in which the court has revoked a CMP declaration (following an application or of its own motion) and the Government is appealing this decision. This amendment would provide for such appeal proceedings to be treated as section 6 proceedings (and therefore provide for sensitive material in such proceedings to be protected by a CMP).
22. Since subsection (1G) of clause 6 (as inserted by Commons Amendment 6) would not apply to these types of proceedings to enable the court to name the "relevant person" in the declaration, Commons Amendment 17 also makes provision for who the "relevant person" is in relation to proceedings treated as section 6 proceedings by virtue of clause 10(4) (see subsection (5)).
23. Commons Amendment 17 would also provide for proceedings treated as section 6 proceedings to be subject to the new review and reporting requirements inserted in the Bill by Commons Amendments 18 and 19 (see the opening words of subsection (4)).
Commons Amendments 18 and 19
24.Commons Amendments 18 and 19 would introduce report and review requirements related to the CMP provisions. Amendment 18 would introduce a new clause: Reports on use of closed material procedure, which would place a requirement on the Secretary of State to report annually to Parliament on factual matters related to CMP provisions in clauses 6 to 10 and in the new clause inserted by Commons Amendment 16 (review and revocation of declaration under section 6).
25 . Commons Amendment 19 would introduce a new clause : Review of sections 6 to 11 . This would oblige the Secretary of State to appoint a person to review the operation of the CMP provisions in clauses 6 to 10 and in the new clause inserted by Commons Amendment 16 ( review and revocation of declaration under section 6) after five years.
Commons Amendments 20, 23 and 24
26. Commons Amendments 20, 23 and 24 are consequential on amendments 18 and 19.
Commons Amendment 25
27.Commons Amendment 25 is a purely technical amendment which would remove a provision that was included during the House of Lords’ consideration of the Bill, and ensured that the House of Commons’ privilege over financial matters was respected.
Commons Amendment 26
28. The effect of Commons Amendment 26 would be to put beyond doubt the power of the Committee to hear evidence on oath. T he general provision in paragraph 2(1) of Schedule 1, permitting the ISC to determine its own procedure, would allow the ISC itself to decide who should administer oaths on its behalf.
Commons Amendment 27
29. The effect of Commons Amendment 27 would be to provide a power for the Government to provide funding and resourcing to the ISC.
30. As a Committee of Parliament, primary responsibility for funding and resourcing the Committee would fall to Parliament. There is no requirement, in order for Parliament to fund the ISC, for an express provision on the Bill. The clear implication of changing the name of the Committee created by Clause 1 from the "Intelligence and Security Committee" to the "Intelligence and Security Committee of Parliament" would be that the Committee would be resourced and funded by Parliament.
31. It is intended that the power that Amendment 27 would provide would be used so that the Government may supplement the funding and resourcing that Parliament provides to the ISC.
32. For example, the power could be used to provide top-up funding for a limited period where the ISC is facing an exceptional workload and its resource requirements have temporarily increased; or it could be used to provide specific resources, such as IT security or physical security, where the ISC’s requirements, because of the nature of the work it does, are different, and more costly to fulfil, than are the requirements of departmental Select Committees.
Commons Amendments 32, 33, 34, 35, 36 and 37
33.The effect of Commons Amendments 32 to 37 would be that only a Secretary of State would be able to decide that information, which the Committee had requested using its powers in paragraph 3 of Schedule 1, should be withheld from the Committee. For government departments, the Bill currently permits a "relevant Minister of the Crown" (as defined in paragraph 3(6) of Schedule 1) to make such decisions (although for the Agencies, the Bill already provides that the decision is one for the Secretary of State).
34. The Commons Amendments did not seek to make changes as regards who should arrange for the information to be provided to the ISC in cases where there is no decision to withhold it. So the duty to provide the information will, for government departments, continue to rest with the relevant Minister of the Crown (this may, but need not necessarily, be a Secretary of State) and for the Agencies, the duty will continue to rest with the Agency Heads. The grounds on which the Secretary of State would be able to withhold information are set out in paragraph 3(3) of Schedule 1. These grounds have not been the subject of any Commons Amendments.
Commons Amendment 38
35. The ISC (either as a committee of Parliament with a right to determine its own procedure, or simply by virtue of being a body of persons) may have a general (implied) power to publish information. Such a power would sit alongside its express power to publish Reports to Parliament as set out in Clause 3. Such a general power would undermine other safeguards for protection of sensitive information in the Bill. Amendment 38 would amend the Bill to provide that the ISC may not publish material that it receives in private in connection with the exercise of its functions, other than through its Reports, and may not disclose the information to any person if the Committee considers that there is a risk that the person will publish it.
36. These protections would be subject to exceptions permitting publication or disclosure of such material: if it has already been placed in the public domain; wherever publication is necessary to meet a legal requirement; and where both the Prime Minister and the Committee are satisfied that publication or disclosure would not prejudice the continued discharge of the functions of the Agencies or other government security and intelligence bodies. This last exception reflects the criterion by which the Prime Minister may require that the ISC exclude material from their reports to Parliament (see clause 3(4)).
Commons Amendment 39
37.The effect of Commons Amendment 39 would be to protect evidence given by a person who is a witness before the ISC from being used in legal or disciplinary proceedings unless the evidence was given in bad faith.
38. Amendment 39 would introduce two protections. The first protection would prevent use of evidence given by a person who is a witness before the ISC in any civil or disciplinary proceedings. The second protection would prevent the evidence of a witness before the ISC from being used against him or her in criminal proceedings. Both protections would be subject to an exception where the evidence in question was given to the ISC in bad faith.
39.The purpose behind these Amendments is to encourage witnesses before the ISC to be as full and frank as possible in the evidence they provide. The fuller the evidence is that the ISC receives (excepting evidence given in bad faith), the more effective the ISC is likely to be in supervising the work of the security and intelligence agencies and the other bodies falling within its oversight remit.
40.These statutory protections would mirror, to some extent, the protections that apply to witnesses appearing before Select Committees, by virtue of the application of Parliamentary privilege to Select Committee proceedings. However, the ISC is different from Select Committees in that it has something of a hybrid nature, being a statutory Committee of Parliament. Commons Amendment 38 would guarantee that witnesses are appropriately protected.
ECHR analysis of Commons Amendment 39
41.Article 6 of the European Convention on Human Rights (right to a fair trial) does not apply to the proceedings of the ISC, as it is not engaged in determining rights or obligations. Article 6 will, however, be engaged in relation to virtually all of the legal or disciplinary proceedings that would be impacted by these protections (as they will involve either the determination of civil rights and obligations or the determination of a criminal charge).
42.As far as the second protection is concerned (the protection on use of a witness’s evidence against the witness in criminal proceedings), since this applies only in criminal proceedings, it provides protection against self-incrimination. The European Court of Human Rights has recognised that the privilege against self-incrimination lies at the heart of the notion of a fair trial and, by providing the accused with protection against improper compulsion by the authorities and thereby avoiding miscarriages of justice, it secures the aims of Article 6 (see e.g. Saunders v United Kingdom (1997) 23 EHRR 313). While the degree of compulsion that might be felt by a witness giving evidence before the ISC may not reach the level at which Article 6 requires that a privilege against self-incrimination should be afforded, nonetheless it is clear that this protection would make a positive contribution to fairness and so could not be incompatible with Article 6.
43.As far as the first protection is concerned (protection on any use of a witness’s evidence in civil or disciplinary proceedings), this would not often impact on the fairness of the civil or disciplinary proceedings affected by it, as the protection on the use of the material would apply equally to all parties in the proceedings: the ‘equality of arms’ between parties that Article 6 requires will be maintained (Jasper v United Kingdom [2000] ECHR 90 at 57).
44.Moreover, while Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see, among other cases, Schenk v Switzerland [1988] ECHR 17 and Knaggs and Khachik v United Kingdom [2011] ECHR 1328).
45.Even if, in exceptional circumstances, the first protection were to operate, in a particular case, so as to limit a party’s ability to bring (or defend) a claim, this would not infringe Article 6. A limitation on access to a court or tribunal will be compatible with Article 6, providing that: (i) the limitation does not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right to a fair hearing is impaired; (ii) the limitation pursues a legitimate aim; and (iii) there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see e.g. Tinnelly & Sons Ltd v United Kingdom [1998] ECHR 56 at [72]).
46.As to (i), the first protection would not prevent any claim from being brought: it would simply exclude a category of material from being admissible in the resulting proceedings. In the vast majority of cases, the party affected will be able to obtain evidence to the same effect as the excluded evidence in another way (e.g. by calling the witness who gave evidence before the ISC to appear to give evidence in the proceedings directly).
47.As to (ii), the first protection would pursue a legitimate aim, in that it would encourage candour in the evidence that is submitted by witnesses to the ISC.
48.As to (iii), the first protection would be proportionate to this aim: it would apply only to civil and disciplinary proceedings (so criminal proceedings would be subject to only to the second protection); and both protections would be subject to an exception for evidence given in bad faith. Evidence given in bad faith will not assist, and may very well hamper, the ISC in carrying out its role. Accordingly, it would be disproportionate for the Bill to place restrictions on the use of such evidence for legal or disciplinary proceedings.
49.The exception for evidence given to the ISC in bad faith would (at least if Amendment 26 is also approved, giving the ISC power to hear evidence on oath) permit the possibility that a witness who deliberately gives false evidence to the ISC under oath could be prosecuted for the offence of perjury under s. 1 of the Perjury Act 1911. Whether such a prosecution could proceed, compatibly with Article 6, may depend, to some extent, on the process which the ISC adopted in relation to hearing the evidence on oath (for example, was the witness notified in advance that they would be required to give evidence on oath? Were they under a constraint or duty that made it difficult for them to answer the ISC's questions?). Where a prosecution for perjury was being considered, these would be matters that the prosecuting authorities would take into account in deciding whether or not the prosecution should proceed; ultimately, the court would ensure that an individual could not be convicted of the offence of perjury in circumstances which would infringe their Article 6 rights.
Commons Amendment 40
50.The Data Protection Act 1998 (DPA) applies to Parliament as it applies generally, save that: where the purpose for which, and manner in which, data is processed is determined by, or on behalf of, either House, then the data controller (the person upon whom most of the obligations under DPA fall) is the corporate officer of the relevant House (s. 63A DPA).
51. Since the ISC will be composed of MPs and Peers (see clause 1(2)) who are appointed by each House of Parliament (clause 1(3)), and (if Amendment 1 is accepted) it will be called a Committee of Parliament, the DPA could be interpreted as applying to the ISC as it applies to Parliament, with the data controller for the Committee being the corporate officer of the relevant House of Parliament (s. 63A DPA). This would not be an appropriate. The sensitivity of much of the data handled by the ISC means that the corporate officers will not be entitled to have access to it, making it impossible for them to ensure that the requirements of DPA are followed. Amendment 40 would add a provision to disapply s. 63A DPA so far as the ISC is concerned so that its data controller would continue to be its Clerk.
Commons Amendment 42
52. Both the House of Commons and the House of Lords are subject to the Freedom of Information Act 2000 ("FOIA") (they are each listed in Schedule 1 FOIA). For the reasons explained above in relation to the DPA, it is arguable that the ISC would be subject to FOIA. Amendment 42 would avoid this consequence by adding a provision to the Bill which would amend references to the House of Commons and House of Lords in Schedule 1 to FOIA to make clear that they are not subject to the Act as regards information held by the ISC. This amendment would preserve the status quo, in that FOIA does not apply to information held by the ISC now and it would not do so in future.
53.Amendment 42 would also add the ISC to the list of the bodies in section 23 of FOIA. The result of this would be that ISC information (information which has been supplied to or by the ISC, whether directly or indirectly, or which relates to it) in the hands of another public authority subject to FOIA (FCO or Home Office, for example) would be exempt information for FOIA purposes. Section 23 is an absolute exemption, i.e. any information falling within the terms of the exemption can be withheld, without having to consider the public interest balance (s. 2 FOIA).
Commons Amendment 44
54. Commons Amendment 44 is a technical amendment which would change the place that a consequential amendment would be inserted into an existing Act.
FINANCIAL EFFECTS OF THE COMMONS AMENDMENTS
55.In Part 1 of the Bill, the Commons amendments, including Amendment 27, are not anticipated to have a substantial effect on public expenditure; and the overall cost is unaffected.
56.In Part 2 of the Bill, Commons Amendment 19 provides that the Secretary of State may pay the reviewer expenses and allowances; such a review is expected to generate costs comparable with similar provisions in wider Counter-Terrorism/security legislation.