Justice and Security Bill [Lords]

The Committee consisted of the following Members:

Chairs: Mr David Crausby  , Mr James Gray 

Alexander, Heidi (Lewisham East) (Lab) 

Brazier, Mr Julian (Canterbury) (Con) 

Brokenshire, James (Parliamentary Under-Secretary of State for the Home Department)  

Crockart, Mike (Edinburgh West) (LD) 

Evans, Graham (Weaver Vale) (Con) 

Evennett, Mr David (Lord Commissioner of Her Majesty's Treasury)  

Gilmore, Sheila (Edinburgh East) (Lab) 

Hillier, Meg (Hackney South and Shoreditch) (Lab/Co-op) 

Huppert, Dr Julian (Cambridge) (LD) 

Johnson, Diana (Kingston upon Hull North) (Lab) 

Lewis, Dr Julian (New Forest East) (Con) 

Murphy, Paul (Torfaen) (Lab) 

Neill, Robert (Bromley and Chislehurst) (Con) 

Nokes, Caroline (Romsey and Southampton North) (Con) 

Paisley, Ian (North Antrim) (DUP) 

Phillipson, Bridget (Houghton and Sunderland South) (Lab) 

Scott, Mr Lee (Ilford North) (Con) 

Slaughter, Mr Andy (Hammersmith) (Lab) 

Wright, Jeremy (Parliamentary Under-Secretary of State for Justice)  

Steven Mark, Lloyd Owen, Committee Clerks

† attended the Committee

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Public Bill Committee 

Thursday 7 February 2013  


[Mr David Crausby in the Chair] 

Justice and Security Bill [Lords]

Clause 10 

General provision about section 6 proceedings 

11.30 am 

Amendment made: 65, in clause 10, 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 section 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.

(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 section 11, is a person who would be required to disclose sensitive material in the course of the proceedings.’.—(James Brokenshire.)

Mr Andy Slaughter (Hammersmith) (Lab):  I beg to move amendment 77, in clause 10, page 7, line 36, at end add— 

‘(6) Rules of court relating to section 6 proceedings must make provision—

(a) to ensure that the burden of proof in section 6 proceedings shall be on the relevant person and, where a party, the Secretary of State,

(b) to ensure that, upon the Secretary of State making an application under section 6(1), he shall be obliged to make full and frank unredacted disclosure to the court and special advocate of all material and information relevant to—

(i) the issues in the action,

(ii) the admissability of any evidence in section 6 proceedings,

(iii) the reliability of any such evidence,

(iv) the existence of witnesses or lines of inquiry leading to the discovery of relevant material, or

(v) the appropriate court procedure for determining the issues in the claim,

(c) to ensure that any material which the special advocate represents may have been procured by torture or by cruel, inhumane or degrading treatment is ruled inadmissible unless the contrary is proved to a high degree of conviction,

(d) to ensure that opinion evidence is ruled inadmissible unless provided by an independent expert,

(e) to ensure that the court shall not without the consent of the special advocate admit any statement constituting hearsay evidence without—

(i) the source being identified to the court’s satisfaction,

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(ii) the court being satisfied that it is impracticable for the source to provide live evidence to the court by oral evidence or video-link and to be available for cross-examination, and

(iii) the court being satisfied that the words of the source are reported or recorded accurately and there is no risk of significant misquotation through multiple hearsay or otherwise,

(f) to ensure that the costs of all the parties to any proceedings in which a declaration under section 6 is made shall be paid by the Secretary of State in any event,

(g) to ensure that any judgement or decision of the court in any proceedings in which a section 6 declaration is sought shall be deemed to be an interlocutory judgement and any party excluded from such proceedings may at any time apply to the court to set aside such judgement or decision on the basis of relevant evidence not reasonably available to that party at the time of the section 6 proceedings.’.

The Chair:  With this it will be convenient to discuss new clause 10—Further provision about section 6 proceedings—  

‘The judge at trial of the relevant civil proceedings may not take into account in determining the issues between the parties any material placed before him in section 6 proceedings which would not be relevant and admissible evidence in an open hearing.’.

Mr Slaughter:  It is a pleasure to see you back in the Chair, Mr Crausby, for what may be the last day of our deliberations, but who can tell? It is wrong to tempt fate. I have just noticed that this paper that I am holding is quite thick. The Government Whip should not be alarmed: it is not as much as it looks. 

It is common ground that closed material procedures are unfair, in that they deny an excluded party the normal opportunities to challenge the reliability of evidence. The amendment and new clause, which address the rules of court under clause 10, propose ways to avoid unfairness that is avoidable within a CMP. I shall deal first with amendment 77 and briefly explain the purpose of each of the proposed new paragraphs. 

Proposed new subsection (6)(a) would place the burden of proof on to the person seeking to use the CMP. It would be for the relevant person—usually the Secretary of State—to disprove the claimant’s case. Proposed new subsection (6)(b) would place on the party making the application for a CMP the usual duty when making an ex parte application—an application where the other party is not present—which is the obligation of full and frank disclosure. 

Common law has long recognised that the court must have the full picture if it is to hear from only one side or on an equal basis for only one side. In a normal hearing where a party is absent, the absent party is protected by the obligation to make the full and frank disclosure that is on the party that is there. Consistent with that, the party must make full disclosure of the issues in the action, the admissibility of any evidence in section 6 proceedings, the reliability of any such evidence, the existence of witnesses or lines of inquiry leading to the discovery of relevant material, or the appropriate court procedure for determining the issues in the claim. When that material is provided within the CMP, it should be the full and unabridged version. 

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I shall read out a short quote from Lord Dubs, who made the point in the other place. He sought to prohibit 

“the Secretary of State from redacting parts of documents disclosed to the special advocate. After all, special advocates are already security cleared. There can be no justification based on security risk or privacy to suppress parts of otherwise relevant documents from those within the security ring or circle. If part of the document is relevant, the entire document should surely be seen so that everything can be read in its context. Quotations out of context may not be meaningful.”—[Official Report, House of Lords, 23 July 2012; Vol. 739, c. 488.] 

That refers in many ways to the question posed by Lord Kerr in the case of al-Rawi. The point is that hearing from one side or hearing from both sides where one is disadvantaged may not give a clearer picture than not hearing the evidence at all, but may give a distorted picture. In the circumstances of a CMP, what I have described will be all the more important, as such a disclosure is a minimum requirement to allow the special advocate to conduct his investigation. 

Proposed new subsection (6)(c) is important. It deals with torture evidence. There will be cases in which there may be a risk that evidence adduced has come from torture or other prohibited procedures. I do not need to convince the Committee of the ethical and practical necessity of excluding such evidence; the law is clear that such evidence is banned. The amendment provides a mechanism to ensure that torture evidence will not be adduced. It is appropriate that entry into the procedure should be triggered by representations of the special advocate regarding the material, and we would anticipate that open counsel, the judge and any other party would take a similar initiative. It is consistent with the approach taken in criminal proceedings that the burden of disproving that the evidence is not tainted by torture falls on the party relying on that evidence. 

Typically, it will only be Government who have access to how information was obtained; a typical example may be information from prisoners held overseas. Excluded parties cannot hope to access information on the sources of information. The burden of proof must therefore be on the Government to prove that such statements may be used in evidence. 

New subsection (6)(d) is directed at inexpert opinion evidence. It is particularly important in circumstances involving intelligence reports, which may rehash opinions rather than data, and are necessarily and notoriously speculative, to ensure that they do not gain weight beyond their worth in the proceedings. Hard data from such sources are useful; speculation is not. In circumstances where informed challenge of inexpert opinion is made almost impossible by the restrictions on communication placed on special advocates, inexpert evidence should not be relied upon. 

New subsection (6)(e) is directed to the necessity of taking care when dealing with hearsay evidence. In circumstances where a party cannot hear or comment on hearsay evidence, the court must be especially careful. An excluded party cannot effectively challenge such information in the usual way. That is why the amendment directs the court’s approach and requires it properly to identify the source of hearsay and to provide the means to ensure the best possible evidence. 

I anticipate that the Minister may make the same arguments that were made by Baroness Manningham-Buller, who said in the House of Lords that such

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a measure would inhibit sources from co-operating with the security services. Her opinion must be given due weight, and I quote: 

“when individuals agree to provide that information in confidence, they seek reassurance that their lives will be protected, and anonymity is key to that. If they were identified, I am afraid that not only would they need to be resettled but very few more would be willing to work for the Government.” —[Official Report, House of Lords, 23 July 2012; Vol. 739, c. 495.] 

Such concerns are weighty, but the new subsection need not have the effect that concerns the Baroness. First, nothing in that provision could lead to the revealing of sources in the public domain. Instead, the review would be in closed proceedings, only to those special advocates given the highest security clearance. Secondly, in a case where the information as to the source appears so sensitive that it cannot be revealed, such information need not be relied on. It would be a great deviation from the standards of natural justice to admit that evidential weight might be given to hearsay information, where the court cannot even be satisfied as to the source. It would discredit the CMP, which is already unfair, and render it yet more vulnerable to criticism. 

New subsection (6)(f) ensures that the costs of CMPs are met by the Secretary of State. Where recourse is had to exceptional and secret courts, it is appropriate that the costs of preparing for those proceedings, and proper representation, are made available to the parties in question. Provision for effective legal assistance is a necessary step to ensuring that proceedings run fairly and are seen to do so. The proceedings are necessarily complex and special, and good lawyers are needed. It is important for public confidence in the system that the disadvantages for parties inherent in the CMP cannot be said to be exacerbated by inadequate legal assistance. I realise that runs contrary to the current views of the Secretary of State for Justice, who believes that we can get justice on the cheap, but there will be additional costs, particularly in relation to secret courts. It is a truism to say that there are additional lawyers involved in the procedure, there are different additional applications and there are additional complexities. I think the Minister would agree that we wish to see the highest standards upheld, but that will inevitably cost more, and it seems unfair that the party who is already discriminated against through the process should have to bear the cost of that process. 

New subsection (6)(g) would make CMPs interlocutory. The reason is self-evident: new evidence might emerge at a later stage, evidence that was said to be secret might come out in another way and be in the public arena, or it might no longer be necessary for the evidence to remain secret. It would, therefore, seem right to revisit the process in a way that was nearer to the ordinary standards of justice. 

My amendment is a probing one, but it is also analytical in relation to how the Government see CMPs working, if they become part of civil procedure, so I would value the Minister’s response to each of my points. Do the Government accept my proposals, and if not, why not? 

The intent of new clause 10 is to avoid consideration in CMPs of evidence of a type that would otherwise be excluded in open court. In particular, it seeks to prevent otherwise prohibited consideration of intercept evidence. Lord Thomas of Gresford in the other place said: 

“It would be quite unacceptable for the trial judge to take into consideration, in determining the issues between the parties, anything that not only is never disclosed to the claimant but that

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would not be admissible in evidence if it were disclosed. The claimant would be doubly prejudiced: there would be evidence given against him in secret that was not admissible, if the judge were to take it into account.” 

Lord Pannick then said, and I agree with him, that 

“as a matter of principle it is surely one thing for the Bill to allow the judge in a secret procedure to look at material that is admissible in court but which the state is unwilling to have looked at in open court because of its sensitivity. One understands the purpose of those provisions. It is quite another thing for the state to be allowed to rely in the closed hearing on material that is, in any event, inadmissible in open court.” 

The Government’s defence of the closed material procedure is that the state should not be in a worse position because the evidence on which it wishes to rely cannot be adduced in open court. As Lord Pannick went on to say: 

“To allow the state to rely on intercept evidence in the closed procedure—evidence that is inadmissible in open court—would put the state in a better position”.—[Official Report, House of Lords, 23 July 2012; Vol. 739, c. 490.] 

The debate in the other place largely revolved around intercept evidence, and I am sure that the Minister will refer to that directly, but mine is a more general point, and that is why the new clause is phrased as it is. It is another equality of arms matter: the way in which the procedure works, given its initial inherent unfairness and what we have said previously about equality of arms, should not be used to front-load the Government’s case with additional advantages, and new clause 10 simply sets out to ensure that that does not happen. 

The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire):  I welcome you to the Chair again this morning, Mr Crausby. 

I note that the hon. Gentleman’s amendment and new clause are of a probing nature and that they develop a number of themes that were advanced in the other place, so I think he will know that to an extent my response will be reflective of some of the comments that were made in the House of Lords. Equally, I recognise the fair points that he advances to challenge, and to seek to ensure that the processes that we intend to adopt for closed material proceedings are appropriately thought through and applied in practice. 

The starting point that I would highlight is that the Bill does not seek to change the civil proceedings rules, save where that is necessary in order to have a closed material procedure. We are not otherwise changing the ordinary rules in a civil procedure relating to disclosure or evidence. 

11.45 am 

Amendment 77 introduces changes that we judge to be simply inappropriate and unnecessary. In places, it seeks to change the ordinary rules and employ safeguards beyond those that would ordinarily apply in civil proceedings and in other closed material proceedings. We do not accept that any such changes are necessary. They introduce inconsistency and the potential for confusion. Civil procedure rules will otherwise apply as normal and we believe that they are adequate to achieve fairness and deliver justice, notwithstanding the closed nature of the proceedings. 

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The hon. Gentleman asked me to respond to each of the individual points, and I will do so. Proposed new paragraph (a) of the amendment calls for the burden of proof in section 6 proceedings to be 

“on the relevant person and, where a party, the Secretary of State”. 

It is not clear how that would work. In that context, “section 6 proceedings” could mean the application for a declaration, the application for a CMP or the full CMP itself. Different issues will be determined in each. Furthermore, the Secretary of State may be a party to the section 6(1) proceedings, but not to the main action. The present position, and the correct line, is that the burden of proof in a matter lies on the party asserting that matter and that will of course apply under the Bill in its current form. It is for the court to decide whether the application is justified. 

Proposed new paragraph (b) imposes a number of requirements that are potentially incredibly onerous. The provision applies only to the Secretary of State, whereas under the terms of the Bill any party is entitled to make an application under section 6(1). That seems inequitable and unfair. Further, the Secretary of State may not be a party to the main proceedings and therefore would not necessarily know all the issues in the case or be in a position to satisfy the requirements set out in proposed new paragraph (b). 

In section 6 proceedings, ordinary rules on disclosure will apply, subject to the CMP provisions, and that is sufficient to ensure that the court is able to reach a view on whether specific pieces of evidence should be disclosable in a CMP. Proposed new paragraph (c) specifies that “any material” or information 

“which the special advocate represents may have been procured by torture or” 


“cruel, inhumane or degrading treatment…unless the contrary is proved to a high degree of conviction” 

should be ruled as inadmissible. 

May I be absolutely clear? The Government stand firmly against torture and cruel, inhuman and degrading treatment or punishment. Where the UK Government know or believe that evidence has been obtained through the use of torture, they will not and cannot rely on it in judicial proceedings. 

The rule against admissibility of evidence obtained by torture stems from article 15 of the United Nations convention against torture and other cruel, inhuman or degrading treatment or punishment, which provides: 

“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.” 

That very clearly states the position. 

Proposed new paragraph (d) of the amendment would be inconsistent with general rules on opinion evidence, and proposed new paragraph (e) imposes an unnecessary restriction on hearsay evidence. I will explain that point; there are already rules that provide adequate safeguards for the use of hearsay evidence. 

Dr Julian Huppert (Cambridge) (LD):  The Minister is as generous as ever in giving way. Regarding proposed new paragraph (d), there have been problems with equivalent processes in the US and how to ensure that

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experts are within the closed material procedure, which can be important if there is evidence that the advocates are simply not qualified to look at or understand. Will he at least look at the problems in the US and try to ensure that there is a way to resolve them sensibly in the UK? 

James Brokenshire:  As I made clear, the Government will not and cannot rely on torture evidence— 

Dr Huppert:  Paragraph (d). 

James Brokenshire:  Sorry, I see. If there is an issue with the operation of the special advocate, I am happy to reflect on the point made by the hon. Gentleman and if there is further clarity I can offer him, I will certainly seek to do so. I will examine the points and see if there is anything on which I could come back to the hon. Gentleman. 

I was coming to the issue of hearsay evidence, because it touches on some of the themes that the hon. Gentleman pointed to. Section 4 of the Civil Evidence Act 1995 provides that the court is to decide what weight, if any, to give hearsay evidence. A judge can include a number of considerations, including whether it was reasonable to call a witness, or if there was any motive to conceal or misrepresent. It is a matter for the judge to assess what weight to give to particular types of evidence deployed in the case, and not court rules. The court and the special advocate test the evidence. 

The judiciary and the special advocates are rightly independent, and if a piece of evidence is remote hearsay, and unsupported by other material in the case, the court may decide to discount it. The important fact is that the decision rests with the court. It might be helpful to briefly highlight what Lord Hope of Craighead said on this point in the case of A and others: 

“The circumstances in which the information was first obtained may be incapable of being detected at all or at least of being determined without a long and difficult inquiry which would not be practicable. So it would be unrealistic to expect SIAC”— 

obviously a parallel CMP-type arrangement— 

“to demand that each piece of information be traced back to its ultimate source”. 

The identity of an agent cannot be revealed for article 2 reasons except in the most exceptional circumstances. In most cases identification of an agent to even a handful of people would potentially put that person’s life in danger, as was pointed out by Baroness Manningham-Buller in the other place. It would not be safe for the Secretary of State to call such a witness, even in a closed hearing. If it were to happen, it would have, in our judgment, a hugely chilling effect on agent recruitment and retention as it would lead to doubt that an identity could be protected. I assure the Committee that in current CMPs the agent’s reporting will in many cases be corroborated by intelligence material from other sources; for example, intercept, eavesdropping or surveillance. It is often the case that the relevant security and intelligence agency will provide an assessment, in closed, of the agent’s reliability and of the reliability of the reporting, in order to assist the High Court—or the Special Immigration Appeals Commission as the case may be—in determining how much weight to give the evidence, based on the agent’s reporting. 

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New paragraph (f) of the amendment would require that rules of court should provide for the Secretary of State to pay all costs of all the parties in any proceedings in which a declaration is made under section 6. Proceedings in which a declaration is made indicate that the application process for a CMP declaration from the court has been successful. Obviously that is the initial stage, when the judge decides whether CMP is in the interests of the fair and effective administration of justice in the proceedings. It is highly likely that it would involve special advocates. Under the amendment, it is unclear who would pay if the application was unsuccessful. We think it should be for the judge and their discretion to decide how to apportion costs. 

Lastly, new paragraph (g) would allow for an excluded party to appeal the judgment at any time, on the basis of evidence not available at the time of the section 6 proceedings. The effects of treating it as an interlocutory judgment are not clear. If parties were regularly to raise such appeals it could cause a significant resource burden on the courts. We believe it is unnecessary in any case, given that a party can appeal anyway, or ask the court to review or revoke a declaration. Obviously, the court has the power to revoke a CMP at any time, and as we have previously discussed they are also obliged to consider whether a CMP is still in the interests of the fair and effective administration of justice in the proceedings at the end of the stage 2 disclosure exercise. 

New clause 10 limits the material that can be taken into court in a CMP to only that which would be relevant and admissible in an open hearing. The very purpose of a CMP is to allow material to be disclosed that is too sensitive to be disclosed in open court. From my reading of the new clause, that will likely include material from the agencies or intercept that it would not be lawful to disclose in open court. Limiting the admissibility of evidence in that way, therefore, would often render CMPs effectively unusable. The exceptions to allow such material to be included were provided for by proposed new clauses 6(1C) and 6(1D), in amendment 55, which was debated earlier. They include intercept material. Hon. Members have agreed on the need for CMPs in a small number of circumstances and, therefore, on the need for a process that takes such material into account. 

The Bill does not seek to change the rules on civil proceedings, save where that is necessary to have a CMP. The proposals would be likely to introduce confusion, as well as inconsistency. On that basis, I ask the hon. Gentleman not to press them. 

Mr Slaughter:  The Minister, in replying to my submissions on amendment 77, relied extensively on judicial discretion—it is nice to see it come up in the Government’s proposals at last. The purpose of rules of court is to give guidance where that is thought necessary. As the Minister will understand from the comments I have made throughout these proceedings, I am a great supporter of judicial discretion. However, where a wholly new and alien procedure, such as CMPs, is introduced in civil proceedings, we need to be rather more cautious. 

I will not ask the Committee to vote on amendment 77. My comments are on the record, and there are clear concerns. I am not particularly persuaded by the Minister’s answers, but so be it. I wish he had said a little more about the intercept evidence point in new clause 10,

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because that is the subject of the debate. Again, however, it is for him to respond as he wishes, so there we are. I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Clause 10, as amended, ordered to stand part of the Bill.  

Clause 11 

Sections 6 to 10: interpretation

Amendments made: 66, in clause 11, page 8, line 10, leave out ‘(4)’ and insert ‘(1G)’. 

Amendment 67, in clause 11, page 8, line 14, at end insert— 

‘“sensitive material” has the meaning given by section 6(9),’.—(James Brokenshire.)

Clause 11, as amended, ordered to stand part of the Bill.  

Clause 12 

Certain exclusion, naturalisation and citizenship decisions 

Question proposed, That the clause stand part of the Bill. 

Mr Slaughter:  I will not detain the Committee greatly on the clause, but I want the Minister’s response on one point. 

We all received briefing on clause 12 from the Immigration Law Practitioners Association. The association proposes a number of amendments, including leaving out clause 12 entirely and maintaining the status quo, which would leave to judicial review decisions relating to certain exclusions of non-European economic area nationals from the United Kingdom that were made wholly or partly on the grounds that their presence would not be conducive to the public good, as well as certain decisions to refuse to naturalise or register a person as a British citizen. That is clearly the association’s view, but the Opposition have not tabled amendments, because that is not our view in this respect. 

The association proposes alternative provisions to remove the proposed option for the Secretary of State to issue a certificate to the effect that information should not be made public in the interests of the relationship between the United Kingdom and another country, or otherwise in the public interest. The amendments appear technical, but are directed to restricting to national security interests the grounds on which the Special Immigration Appeals Commission can hold closed material procedures in the cases provided for by the clause. That would bring the Bill’s immigration-related provisions into line with the general provisions concerning closed material procedures in relevant civil proceedings. 

Subsection (2) of a new clause proposed by the association would restrict the use of closed material procedures to the grounds permitted in relevant civil proceedings—that is, national security grounds. Subsection (3) would require procedures to ensure parity of safeguards for applicants and appellants before SIAC, as for parties in relevant civil proceedings. Subsection (4)

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would permit the commission to determine how that parity was to be ensured. The aim of the association’s new clause is: 

“To ensure that safeguards, both procedural and jurisdictional, as to the use of closed material procedures in non-immigration cases are applied equally in immigration cases.”


12 noon 

The cases that the Bill proposes to cover are already covered by judicial review. When Mr Justice Ouseley, in the case of AHK and others, recently considered that in some cases a CMP might be appropriate, he had been told nothing other than that naturalisation had been refused on the grounds of character and that it would be contrary to the public interest to give reasons. His dilemma was: 

“It is not so much that the case is untriable; it can be tried. It is simply that the evidence means that the Claimant cannot win”, 

Unlike the Bill, however, he felt that the CMP should be considered only on the basis that public interest immunity would first be exhausted. ILPA argues that protections afforded by Parliament on the use of CMPs in the civil context should apply in the immigration context. It states: 

“Ministers should be asked to give undertakings to amend the SIAC procedure rules to reflect the conclusions reached in the consideration of this Bill. Those appearing before SIAC should not be subject to a lower standard of protection than those in other courts.” 

The point that the Minister may or may not wish to respond to, but with which I wish him to deal, is the Ouseley point, which is that, following AHK and others, the view of the court was that CMPs should be used only in those circumstances on the basis that PII should first be exhausted. 

James Brokenshire:  The hon. Gentleman rightly highlighted the problem of when an adverse decision on a naturalisation or citizenship case is informed in part or whole by sensitive material. The amendment enables such decisions to be challenged within the ambit of SIAC. 

The point at issue is that decisions made by the Secretary of State in such circumstances are not subject to an automatic right of appeal and, therefore, the only route is judicial review at the High Court. There are a number of cases in which information of a sensitive nature justifies the action to exclude or refuse nationality. Such information could indicate that the individual was engaged in terrorism-related activity or serious criminality. In other cases, a decision might seriously impact on the UK’s international relations with another country. 

It cannot be right in such circumstances that the Secretary of State is restricted in carrying out his or her duty to protect the public on the presumption that such material cannot be produced in judicial proceedings to defend and justify a decision. Equally, the claimant should not be denied judicial assessment of a decision on the basis that no forum is appropriately equipped to handle the material behind the decision. That is the unsatisfactory situation that Justice Ouseley mentioned in the case of AHK and others. He acknowledged that, in his judgment, the rather unsatisfactory outcome should be remedied in Parliament by provision for a closed material procedure, at least in that sort of case. It is an unsatisfactory situation that the court is unable to take

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into account the very material upon which the decision was based, and that could lead to a case being dismissed as untriable, which would prejudice the claimant in the interests of natural justice or, in the circumstances that the hon. Gentleman has fairly explained, it could simply lead to the Secretary of State’s view being upheld. 

The question that the hon. Gentleman poses about PII being exhausted takes us back to some of our previous debates on closed material proceedings, including on amendment 55 to clause 6. I simply restate the point I made about a case being saturated with information, and as David Anderson pointed out to the Joint Committee on Human Rights, the exercise might be pointless. It may be so clear that a CMP-type arrangement is required that going through a PII arrangement, or fully exhausting it, would simply be inappropriate. I underline that point in responding to the hon. Gentleman. The points I made in relation to clause 6 are equally applicable in responding to the point that he has now made about this particular clause. 

Question put and agreed to. 

Clause 12 accordingly ordered to stand part of the Bill. 

Clause 13 ordered to stand part of the Bill. 

Clause 14 

Disclosure proceedings 

Diana Johnson (Kingston upon Hull North) (Lab):  I beg to move amendment 78, in clause 14, page 11, line 14, at end insert 

‘where that information relates to national security or the interests of the United Kingdom’. 

The Chair:  With this it will be convenient to discuss the following: 

Amendment 79, in clause 14, page 11, line 15, leave out ‘an’ and insert ‘a foreign’. 

Amendment 80, in clause 14, page 11, line 17, leave out ‘an’ and insert ‘a foreign’. 

Amendment 81, in clause 14, page 11, line 18, leave out paragraph (d). 

Diana Johnson:  Welcome back to the Chair, Mr Crausby. Even though we are coming to the end of the Bill, this is my first chance to welcome the Under-Secretary of State for Justice to his new job. I knew him of old, when he was a Home Office Whip, a job he did very well and with good humour, which is a requirement when dealing with Home Office matters. As a former Whip, I would certainly say that it is good to move to a speaking part. 

Clause 14 and these amendments deal with the Norwich Pharmacal principle. In order to deal with the amendments properly, it would be helpful to spend a few moments setting out the background to the clause and the reasons why the amendments have been tabled. That may save us from having a stand part debate later on in the proceedings. 

The case of Norwich Pharmacal was not about national security at all; it was a customs matter. The Norwich Pharmacal company was the exclusive licensee of an antibacterial product. Between 1960 and 1970, it became aware that another company was importing that antibacterial

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product. In order to be able to take action, it needed to identify that company, and only UK Customs and Excise knew the identity of the second company. In 1974, the House of Lords ordered that UK Customs and Excise disclose the name of that company. 

The principle established in that case, and subsequently adopted in other Commonwealth countries, was that a third party could be forced to divulge information, even if they were not at fault or party to the original proceedings. There are five conditions that must be satisfied before a third party can be made to divulge information. First, the claimant must have a reasonable case in the main litigation. Secondly, the defendant must in some way be involved in the wrongdoing, which could be innocently. Thirdly, there must be no other way for the claimant to access the information. Fourthly, the claimant must show that the disclosure is necessary, and the court can only permit a disclosure in so far as it is necessary. Fifthly, it must be in the public interest to disclose the information. 

The Government have brought the matter before us in clause 14 because of the case of Binyam Mohamed. The UK court applied the principles of Norwich Pharmacal—essentially, a patent case—in a case involving national security. Binyam Mohamed, as all members of the Committee will know, was facing capital charges in the USA, and his lawyers argued that the UK had evidence in its possession that proved that Mr Mohamed had been tortured. The allegation was not that the UK had tortured Mr Mohamed, but that the UK possessed evidence that proved that the UK had been aware of the torture. After lengthy court proceedings both here and in the United States, the court ordered the disclosure of that information. The problem was that the information had come from the US intelligence agencies, and the possibility of further information being disclosed in the future has hindered information sharing with the US and other allies. 

There have been different interpretations of exactly what the Court of Appeal ordered in the case of Binyam Mohamed, but rightly or wrongly our allies were left with the impression that we had divulged classified information and that the control principle had been compromised. To set that in context, the control principle has been usefully explained by the Constitution Committee of the House of Lords as providing that 

“intelligence shared by state A with the intelligence agencies of state B remains under the control of state A even after it has been shared. In particular, state B may not disclose the intelligence shared with it by state A without the consent of state A”.

In evidence to the Joint Committee on Human Rights, David Anderson QC, the independent reviewer of terrorism legislation, summarised the attitude of the United States: 

“Well, if we give you our secret information on the basis that you promise to keep it to yourself and then you start showing it off to other people, we’re not going to give you as much as we did before”.

Dr Julian Lewis (New Forest East) (Con):  There was a complicating factor in that case. The British court took the decision to reveal the information partly because it had already come into the public domain. The British court not unreasonably thought that that would reassure the Americans that there was no real breach of the control principle. All I can say to the hon. Lady is that

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the reaction of the Americans showed that reasonable assumption not to be the case. The Americans were very upset about the control principle being breached, irrespective of the fact that the information had already leeched out into the public domain. 

Diana Johnson:  I am grateful to the hon. Gentleman. That sets in context exactly the position that we find ourselves in. It is helpful to have that on the record. 

David Anderson went on in his evidence to emphasise the scale of the problem. Having made plenty of inquiries, he said that he had seen clear evidence of a reduced willingness on the part of our allies to share sensitive information with us. That backs up what the hon. Gentleman has said. We cannot underestimate the importance to the UK of intelligence sharing, particularly with the US. In the other place, there were frequent references to the almost unparalleled level of co-operation on intelligence matters between us and the United States, something I know that my right hon. Friend the Member for Torfaen has substantial experience of, as do other members of the Committee, as we have heard. 

I understand that the United Kingdom has received assurances that it would never be deprived of life-saving intelligence, but the Opposition accept that that is not enough. I remind the Committee of the comments of Baroness Manningham-Buller in Committee in the other place: 

“The nature of intelligence work is putting together information from perhaps five or six different countries and 20 different organisations—little bits and pieces of a jigsaw that, together, might save lives”.—[Official Report, House of Lords, 23 July 2012; Vol. 739, c. 553.]

Therefore, the Opposition support the Government doing what is necessary to ensure that the UK continues to get every strand of evidence and all the bits of the jigsaw puzzle. Indeed, there is general consensus on the need to do so. It is worth reminding ourselves why this issue differs from the ones we have been discussing prior to clause 14. Clearly, this is different from the case of a person bringing proceedings directly against the UK Government. As we have discussed at length in Committee, we know that, in those cases, there are measures that can be used—the closed courts measures—to protect information that might otherwise be disclosed. The ultimate way that that can be dealt with is through the withdrawal of any proceedings brought by the British Government or through an attempt to settle the matter. However, under the Norwich Pharmacal principle, the only option is to use PII, and if that is not successful the information has to be disclosed, and that of course would go to the heart of the control principle that we all wish to protect. I think that that is worth noting. 

12.15 pm 

We therefore support the Government amending the law to protect the control principle, and we accept as necessary their aim of preventing sensitive information from being disclosed under the Norwich Pharmacal principle. Where we disagree with the Government—this leads to the amendments—is on the definition of sensitive information as laid out in the Bill. In particular, we feel that the Government have been a bit too keen to protect information and, perhaps unwittingly, have included

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not only information originating from foreign intelligence agencies but UK-sourced information—in fact, any information about the intelligence agencies at all. 

The Opposition think that the clause has gone too far. We want to protect the control principle but we think that can be done by narrowing the definition of sensitive information as set out in the provision. Even David Anderson QC referred to the current drafting as having an element of overkill. 

To achieve our desire to deal with the control issue but in a more focused way, amendment 78 amends clause 14(3) to define as sensitive any information held by an intelligence service 

“where that information relates to national security or the interests of the United Kingdom”. 

I tabled the amendment because the Opposition do not believe it is necessary to introduce a blanket exemption for all information from the security services. 

To illustrate that, I draw the Committee’s attention to two examples where I think we would want the intelligence service to release information. The first is the hypothetical example of a cleaner employed by G4S but working in the building of the Secret Intelligence Service; a similar scenario was suggested in the other place. Let us imagine that the cleaner in the course of her duties injures her back, and as a result of those injuries she is unable to work for several months and wishes to bring a claim against her employer, G4S. We have to remember that, as well as having a unique role protecting this country, the intelligence agencies are a Government agency with a duty of care and responsibility to people who work there. 

As the legislation is currently drafted, the cleaner would be unable to request any information at all from the SIS in support of her claim. There may be basic pieces of information that the SIS would hold that would help her case: personnel records showing when she arrived in the building, information about the level of lighting in the area, the floor type, perhaps even CCTV. It may be the case that it would be impossible to prove G4S’s liability without access to that information, yet the court would be unable to get the SIS to release any of that information because it would be caught under this blanket ban. 

I mentioned the tragic case of Gareth Williams when we discussed part l of the Bill. As we know, the coroner in that case was very critical of the pastoral support provided by the agencies to Mr Williams and the co-operation with the Metropolitan police after his death. Many questions remain about how he died and there could be civil actions in the future. 

It occurs to me that if such an action were taken against the Metropolitan police, for example, under the Bill as it stands there would be no obligation on the employer to release any information about Mr Williams, even if it was something as innocuous as the days on which he attended the office. David Anderson QC also stated: 

“Surely at least in one respect what is proposed is disproportionate, because it applies to all information within the possession of the intelligence agencies. Presumably that includes the bill from Tesco for their sandwiches, to which no security importance whatever attaches. It is very difficult to see how that could be proportionate, even if it does turn out to be necessary to have some sort of blanket exclusion, as suggested in the Bill.” 

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We do not think our amendment would in any way undermine the control principle, the operation of the agencies in respect of national security or the UK’s interests. If this small amendment were accepted, the disclosure of operational matters would be prevented. However, the amendment would allow legitimate requests for information. One of the five principles that have to be followed when deciding whether Norwich Pharmacal should apply is that the release of the information should be in the public interest. That is why we have tabled amendment 78. 

Amendments 79 and 80 both seek to limit the definition of “sensitive information” to information derived from foreign intelligence agencies. That is because of the problems that have arisen from the case of Binyam Mohamed involving the information given by a foreign state. 

The control principle that we seek to protect is one of absolute control over foreign intelligence, yet the Bill makes no distinction between foreign and UK intelligence, or foreign and UK agencies. Amendment 79 seeks to make that distinction in relation to information obtained from, or held on behalf of, an intelligence service. We want to restrict this to a foreign intelligence service. 

Of course there will be occasions when British intelligence needs protecting, and during the course of the Bill we have had extensive discussions on the mechanisms for doing that. I believe that these mechanisms are sufficient. The case of Binyam Mohamed threatened the control principle and information sharing, and the Opposition will support the Government in addressing those problems. However, we think the drafting of the Bill goes too far. 

Robert Neill (Bromley and Chislehurst) (Con):  The hon. Lady is making her point carefully and proportionately, but is there not an irony in how her amendment is drafted? 

There could be the slightly odd situation of a foreign national, resident abroad, suing a third party country in a foreign jurisdiction, but because a British intelligence agency had been—perhaps innocently—mixed up in the matter, information held by the British intelligence agency could be disclosed to somebody who had no connection with the United Kingdom and was involved in a dispute with a Government who had nothing to do with the United Kingdom. On the other hand, it might be in the UK’s broader interest to maintain good relations, beyond the control principle, with that country. Is that really a wise situation to get ourselves into? 

Diana Johnson:  As I understand it, there may well be a backstop available under paragraph (3)(e), in terms of a certificate being issued. I think we might come on to that in a moment. I would like to finish dealing with the point about why we think our amendment would focus on the real problem, which is to do with the control principle and making sure that that remains in force. 

Amendment 80 does something similar in relation to information derived in whole or in part from information obtained from or held on behalf of an intelligence service. Again, the Opposition want to restrict that to foreign intelligence. We accept that there is not always a clear distinction between UK intelligence and intelligence that has been derived from foreign agencies. I have already quoted the noble Baroness Manningham-Buller

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on that point, but the Committee should realise that the noble Baroness herself accepted that the Government’s proposals went further than necessary in upholding the control principle. 

It is also important to look at the protections already in the Bill around that very point. Even if we pass amendments 79 and 80, the Bill will still offer complete exemptions to information 

“obtained from, or held on behalf of, an intelligence service” 

and to information 

“derived in whole or part from information obtained from, or held on behalf of, an intelligence service”. 

We think that that is sufficient to protect the control principle in regard to any information even one shred of which is derived from foreign sources. 

Amendment 81 seeks to remove from the definition of “sensitive information” the reference to information 

“relating to an intelligence service”. 

The Opposition do not see the need for that paragraph, given all the other protections in the Bill. 

We are seeking in special cases to prevent the courts from accessing information as they would normally do in the pursuit of open justice. That is something we should do only to address a specific problem and we need to ask constantly whether the measures are proportionate. 

The Opposition do not see a specific need to include paragraph 3(d) to protect the control principle. As my noble Friend Baroness Smith of Basildon said in the other place:

“there is a clear difference between descriptive information about foreign intelligence services and the intelligence supplied by them. It is the second, not the first, that the control principle relates to and which our foreign partners are concerned could be disclosed—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1921.] 

My noble Friend went on to press the Minister, the noble Lord Wallace of Tankerness, to give a specific justification for including the passage in the Bill. The Minister’s response was to suggest that the paragraph was included to protect information held or obtained by other Departments, namely the Home Office, which relates to the work of the security agencies.

With the greatest respect to the efforts of the noble Lord, however, that completely misses the point. The purpose of clause 14 is not to protect any information that the security agencies have or which other Departments have about the agencies, but to protect information that originates from foreign intelligence agencies.

Clause 14 is included to address a specific need to uphold the control principle; it is not intended to offer general protection to information held by Government Departments relating to the security agencies. If the information held by the Home Office in any way related to foreign intelligence—and therefore invoked the control principle—that would be covered by the other protections we have already discussed at length.

Could the Minister tell us whether, if we removed paragraph 3(d), there would still be the power to issue a certificate under 3(e)? Would that not be sufficient? Will the Minister specifically outline the requirement to include paragraph 3(d) and how that directly relates to the control principle? If the Minister is unable to do that, he should accept our amendment.

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May I raise two small matters about the clause? First, I understand that the Norwich Pharmacal principle does not apply in Scotland, yet the Bill covers Scotland. Will the Minister explain the position in relation to Norwich Pharmacal and Scotland?

Secondly, will the Minister explain exactly what paragraph 7(a) means? I am struggling to follow what that would mean as it is currently drafted. I do not know whether there is a drafting error.

Mike Crockart:  I do not intend to talk particularly about the amendment but, given what the hon. Member for Kingston upon Hull North said about general comments and not having a clause stand part debate, it is probably best that I make my comments now. 

It is interesting to be a Scottish MP speaking about English law, despite my previous occupation. I mentioned that I was speaking about English civil law to a colleague, who said, “You must be very happy speaking about English people killing each other”. I realised that he had misheard me; he thought I had said “English civil war”.

I will start by admitting that for me, on the Joint Committee on Human Rights, the Norwich Pharmacal part of the Bill was the most difficult to understand fully, especially as part of a Committee filled with civil rights lawyers. But I got there eventually.

Ultimately, the JCHR agreed that the Norwich Pharmacal application carries a heightened risk of disclosure, especially of material damaging to national security. After all, the very purpose of the application is to order disclosure of material. We also agreed that the use of Norwich Pharmacal towards intelligence information was a novel application, to say the least, and one for which it was not meant or designed. There was debate about whether there was indeed a serious risk of a UK court ordering such information to be disclosed. As my hon. Friend the Member for Cambridge said, there was some dubiety around the circumstances pertaining in the Binyam Mohamed case and whether the information had already been released. 

12.30 pm 

Given that a perception of a leaky court system can cause as much damage to intelligence flows as an actual weakness, we agreed that change was necessary. The focus therefore moves to whether the change proposed is proportionate, and on that the Joint Committee on Human Rights and the Government disagree. 

I do not intend to go into the amendments suggested by the JCHR in great detail because they have not been tabled, but I am disappointed that the Government have not seen fit to reconsider their proposals in the light of those suggestions. I therefore have a few questions for the Minister. 

The Bill seems to try to give an unconditional guarantee that was not required by other intelligence services. The independent reviewer of terrorism has been extensively quoted, but I have one more quote to add to the list. He made clear in his evidence to us that it is accepted in the US that 

“the letter of the US law does not give an unconditional assurance that…UK-sourced intelligence was safe from disclosure in American courts.” 

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Given that that is the situation in America, it seems strange that we should be changing the law to make that unconditional guarantee in this country. The present system already assumes a high level of deference, but not an unconditional guarantee, when dealing with PII applications. It is therefore incumbent on the Government to explain why they feel that they need to give such an assurance. 

Dr Lewis:  I think I may be able to help the hon. Gentleman. As I said in my earlier intervention, one could not have had a more reasonable case for breaching the control principle than happened in the Binyam Mohamed case—after all, the information was already in the public domain. Yet it still did damage to the control principle. We feel that such an absolute response is necessary to rectify that damage. If something similar happened in America to our material—fortunately, that has not happened yet—I suspect that we would go back to them with a similar request. 

Mike Crockart:  I disagree; I hope that we would not. I hope that we would be rather more circumspect and reasonable in our response if the information had already been placed in the public domain in this country and was then released in the American courts. We need to ensure that the response is proportionate. I feel that the Bill rather oversteps the mark. 

Heidi Alexander (Lewisham East) (Lab):  The hon. Gentleman is making the point that we need to find a way to respond to the situation proportionately, and the Opposition amendments seek to do exactly that. Will he share his thoughts on those amendments? He has been talking about the amendments that might have been possible as a result of the discussions in the JCHR, but will he say specifically whether he will support our amendments if they go to a vote? 

Mike Crockart:  I have looked at the Opposition amendments and I do not think they go far enough. They do not do exactly the same as the JCHR hoped. The Opposition propose deleting paragraph (d); the JCHR felt it was necessary to delete paragraphs (a) to (d) and to rely entirely on a certification system, but dealing with sensitive information in a different way. 

Mr Slaughter:  I hope we are not getting into another “say one thing and do another” view from the Liberal Democrats, as we did on the closed material procedures point. If the hon. Gentleman agrees with the Joint Committee amendments, why did he not table them? 

Mike Crockart:  Our focus—I know the hon. Gentleman is going to come back and ask who I mean by “our”; I mean my hon. Friend the Member for Cambridge and me. Our focus is very much on closed material procedures. Once I have heard the Minister’s reply, I reserve the right to come back to the matter on Report and see what the JCHR’s continuing view of the situation is; it will have had a chance to consider the Bill in its current form and how it leaves this Committee. I will speak to the JCHR in great detail and see where we are when we get to the end of this process. 

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I am certainly not in danger of saying one thing and doing another; I came here to make it clear that I support the JCHR’s position. The Opposition amendments do not do that. I do not think they go far enough, and I will not support them. 

Mr Slaughter:  I seek clarity from the hon. Gentleman. He said that our amendments do not go far enough. We did not think that his amendments on closed material procedures went far enough, but we still supported them because they were better than nothing. I hope that therefore he will support ours. If, on the other hand, he thinks, nothwithstanding not having troubled himself to table amendments, that the clause is defective, presumably he will vote against the clause. At the moment, he appears to be saying that he will do nothing. 

Mike Crockart:  I have made my position crystal clear. I support the JCHR’s position and do not believe that the hon. Gentleman’s amendments go far enough. I support the fact that change is required to deal with the perception of weakness in the court system. I cannot be any clearer than that. 

I have one final point to make—on the question of what is regarded as “sensitive information”. I invite the Committee to compare the broad definition included in the Bill with that used by the Intelligence and Security Committee. It is quoted in the JCHR report and states: 

“The Government says that material held by, relating to or originating from one of the intelligence services is by definition security-sensitive information. The Intelligence and Security Committee, however, distinguishes between sensitive information and information the public disclosure of which really would jeopardise the national security of the UK…the ISC considers that there are only two narrow categories of information which can rightly be said to be that sensitive”. 

Those are defined as: 

“UK intelligence material which would, if disclosed publicly, reveal the identity of UK intelligence officers or their sources, and their capability…and foreign intelligence material, provided by another country on a strict promise of confidentiality”. 

The JCHR therefore recommended that Norwich Pharmacal jurisdiction be restricted to these categories of information and exclude those narrow definitions. Will the Minister explain why that suggestion cannot be adopted and why he feels he must rely on a much broader category and definition? 

Paul Murphy (Torfaen) (Lab):  Welcome to the Committee again, Mr Crausby. The hon. Member for Edinburgh West made an interesting point regarding what might be called reciprocity in terms of dealing with intelligence material. He was right to tell the Committee that this is an issue. Some years ago, when I was in Government, there was a similar case in the United States of America, which never actually came to court. Had it done so, it could have revealed intelligence material from our own country, so there is a case for looking at how to deal with that particular situation. 

I endorse the comments of my hon. Friend the Member for Kingston upon Hull North in her measured, sensible and thoughtful speech and support the Government on this part of the Bill. My own experience over the years, both as a Secretary of State who had daily access to sensitive material and as the Chairman of the ISC, tells me that our relationship with the United States of

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America in intelligence terms is absolutely vital to the security of our country. Of that, there cannot be any doubt. Ever since the CIA was established after the war, the intimate relationship between our own services and the United States has been crucial in ensuring that we not only combat terrorism, but deal with a host of threats that come before us jointly. 

Of course, we have relationships with our European partners, as well as Australia, New Zealand, Canada and so on, but nothing as important as that special relationship with the United States. Therefore, it is vital that we deal with the problems of intelligence that comes to us in such a way that the United States would not be afraid of giving us intelligence. It is vital that we do not compromise the US in any way in terms of the intelligence that we rightly need for the work that we do throughout the globe. However, my hon. Friend’s points were valid and I hope that the Minister will be able to deal with them. 

There is a difficulty in how we define the intelligence, because the users, or customers, as they are called these days, of intelligence would look not at the raw intelligence but at the refined report that comes before a Minister and officials. That particular report could be mixed up and contain information that had been derived from the United States, from elsewhere, or from our own sources. It is not always clear to the reader exactly from where the intelligence has come. 

When I was a young and green Minister of State, I had to deal with such issues and I read a report that was based on intelligence and other material that was not sensitive. The report of course was derived and refined from different sources. It was easy to forget which particular source a bit of information came from, and it could have been revealed unless one were very careful. It is a difficult issue. There is a real problem in defining precisely what foreign intelligence is. 

As for the case of Gareth Williams, my hon. Friend made a valid point. Information that comes from other agencies does not necessarily have to be sensitive. If there is a case dealing with the duty of care for an employee, the Bill should not be used to block it, or to obstruct information when it could be used in a case that in no way threatens or jeopardises sensitive information or the intelligence of our country. That is why I think the provision is a bit sloppy and there is a real need for the Government to tighten up the clause in the terms set out not only by my hon. Friend but by the hon. Member for Edinburgh West, who referred to our own material being used in other parts of the world. 

The Parliamentary Under-Secretary of State for Justice (Jeremy Wright):  It is a great pleasure to serve under your chairmanship, Mr Crausby, and indeed to respond to the debate. I am grateful for the words of welcome from the hon. Member for Kingston upon Hull North. She was kind enough to say that she shared the same experience of moving from a non-speaking role to a speaking role. It worked out very well in her case; we shall see whether it works out quite so well in mine. 

I want to deal with the hon. Lady’s amendments and the comments of other right hon. and hon. Members. I do not need to go into great detail about the background to the issue, to the Norwich Pharmacal case, which she set out very well, or indeed to the changes that resulted

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from the Binyam Mohamed case in 2008. As she explained, her amendments propose an absolute protection for information obtained or derived from intelligence information only where such intelligence information emanates from a foreign intelligence service. They seek to limit the protection afforded to information held by a domestic intelligence service to cases where the information relates to national security or the interests of the United Kingdom—she set out the reasons behind those proposals, as did the right hon. Member for Torfaen, to which I shall return. The protection for sensitive information relating to an intelligence service would be removed. 

Before responding to the amendments in detail, it is worth my saying a little about why the Government have taken the approach they have to the reform of the jurisdiction in its application to sensitive information. As the hon. Lady said, the aim of a Norwich Pharmacal application is to force a third party, who is mixed up, however innocently, in the suspected wrongdoing of another, to disclose information that the claimant seeks in connection with another set of proceedings. 

In seeking to legislate with these clauses, we will not affect anyone’s ancient common-law rights. Norwich Pharmacal relief is an equitable remedy that was developed in the intellectual property sphere, as the hon. Lady said, in 1974. It was first applied to sensitive national security material in 2008. Since then, there have been an increasing number of attempts to use that jurisdiction to seek the disclosure of sensitive information that belongs to the UK Government or that our allies have shared with us. It is worth pointing out that no other country permits disclosure of sensitive material in that way. 

12.45 pm 

The hon. Lady asked me about the meaning of clause 14(7)(a), which: 

“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”. 

I entirely understand why the hon. Lady does not find that immediately clear, but it ensures that the Secretary of State continues to have the ability to issue a certificate in cases where the Secretary of State is the respondent to those Norwich Pharmacal proceedings as well as when he or she is not. So there are circumstances in which the information being held might be held by the Secretary of State, and it would not be right to exclude the possibility of a certificate being issued in such cases. 

As the sole purpose of such types of proceedings is to gain disclosure of material—this goes to the crux of the issue as far as Norwich Pharmacal is concerned—the Government do not have the option to withdraw from or seek to settle those proceedings. If a claim for public interest immunity is unsuccessful in relation to that material and the judge orders disclosure, there is no option but for the Government to release the sensitive information regardless of the consequential damage to national security or international relations. That is why, as I think all members of the Committee who have spoken have conceded, this is different from the cases that we have discussed so far and why our approach needs to be similarly different. 

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It is no exaggeration, of course, to say that the risk of disclosure of such material in a single case can have far-reaching and long-lasting implications for the national security and international relations of the UK well beyond that case. The Bill was therefore drafted in such a way as to provide the greatest possible certainty and clarity in the provisions for the protection of sensitive information. For information held by, originating from or relating to an intelligence service—the Security Service, the Secret Intelligence Service, GCHQ and military intelligence—the Bill removes the availability of Norwich Pharmacal relief. This approach is consistent with the approach in other legislation that has been passed by the UK Parliament, such as the Freedom of Information Act 2000 in which Parliament explicitly ruled out a right to access intelligence material. 

The hon. Lady also asked about application to Scotland. She is right that there is currently no equivalent jurisdiction in Scotland as there is in England and Wales, and indeed in Northern Ireland, in connection with Norwich Pharmacal, but she will recognise that Norwich Pharmacal’s application to cases of this nature was an innovation, and what we seek to do is to ensure that no loophole is gained here for a different jurisdiction in the United Kingdom. So this is a pre-emptive measure—a precaution—and that is why that part of the Bill is there. 

As has been well rehearsed and I think largely accepted, the novel application of Norwich Pharmacal to national security cases—in the Binyam Mohamed case and beyond—is eroding the confidence of our agents and our intelligence-sharing partners that we can protect the secrets that they share with us. In the case of human agents, there is the real concern of threat to life. 

The hon. Member for Edinburgh West made the point that David Anderson has been well quoted in the Bill and I would hate to be left out, so perhaps I can be allowed one of his two. He said: 

“The Green Paper accurately summarises both the limited reduction already seen in the flow of intelligence information from some US sources, and the possibility of a further reduction if it is perceived that information supplied in confidence might be released for other purposes.” 

The fact that the Norwich Pharmacal jurisdiction has become applicable to cases involving national security sensitive information has resulted in an adverse impact on the UK’s intelligence-sharing relationships, which has real implications for the UK’s national security interests. 

To quote someone else, also in relation to the JCHR—as the hon. Member for Edinburgh West will recognise— Sir Daniel Bethlehem, QC, said: 

“What I do not doubt…is that a failure by HMG to be able to provide necessary reassurance on these matters to the UK’s intelligence partners would inevitably lead to a re-evaluation on their part of long-standing intelligence-sharing arrangements.” 

The core issue associated with the Binyam Mohamed judgment is that it caused considerable doubt to creep into the heart of the PII process. The fact of the matter is that intelligence and similar relationships that hinge fundamentally on trust and reliability require greater certainty than the courts are now able to provide. 

I am very grateful to the hon. Lady for what she said on that, which was that she supports the Government doing what is necessary to get every strand of necessary evidence, and, as she put it, to find every piece of the

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jigsaw. I accept that that is what every member of the Committee is seeking to do, but, as other Members have said, we must get that judgment right. That, of course, is where the hon. Lady’s amendments focus, so let me turn to them in detail. 

I welcome the acceptance of the control principle as outlined in amendments 79 and 80. However, we do not believe that it is sensible to make amendments 78, 79 and 80, as there are inherent difficulties in identifying what qualifies as having been obtained from a foreign intelligence service as opposed to one of our own intelligence services. That is very much the point that the right hon. Member for Torfaen was making. 

Those difficulties would lead to further uncertainty and, potentially, further litigation. For example, there may be correspondence between the Secret Intelligence Service and the Security Service commenting on foreign intelligence material, with consideration of the subsequent implications for counter-terrorist investigations or operations, which may then be passed on in a confidential briefing to the Foreign Secretary. It is difficult to separate what is information belonging to a foreign intelligence service and what is information belonging to one of our own services, so the amendments would lead to unwieldy and unnecessary litigious disputes as to what information falls within the exemption and what falls under the certification regime. 

David Anderson discussed some of those practical difficulties in his evidence to the JCHR. He said: 

“I suspect that there may be difficulties in distinguishing between intelligence derived from foreign sources and domestically derived intelligence, simply because in some respects intelligence gathering is so closely co-ordinated with that of other countries that it can be very difficult to disentangle the two.” 

I think that that is very much what the right hon. Gentleman was saying. Although I appreciate that effort has been made in the amendments to avoid that sort of entanglement, I think that it will prove extremely difficult to disentangle those types of intelligence for the purposes that the hon. Lady seeks to achieve. 

There is another point, too. The hon. Lady indicated that the Government may have unwittingly included information from domestic sources under the definition in clause 14. She is wrong about that. It is not unwitting at all; it is wholly deliberate. We simply do not believe as a matter of principle that it is right that foreign intelligence material should be afforded greater protection under these clauses than domestic intelligence material. That would be the consequence of her amendments. 

Yes, providing reassurance to our intelligence-sharing partners abroad is a key objective behind these provisions, but it is not the only objective. It is vital that we provide equal protection to sensitive information gathered and generated by our own intelligence services. If such information were disclosed, the lives and safety of intelligence sources and intelligence officers, as well the effectiveness of the techniques they use to gather information, could be jeopardised. There would be a serious risk that elevating all aspects of foreign intelligence to be absolutely exempt without providing the same protection to domestic material could be interpreted by the courts as a signal from Parliament that domestic material warrants a lower degree of protection. 

On amendment 78 specifically, the approach taken is not consistent, for example, with the approach taken in the Freedom of Information Act. That Act does not try

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to exclude the intelligence services from the operation of the Act only insofar as they hold information relating to national security or the interests of the United Kingdom; it excludes them from the Act as a whole. It does that in recognition of the fact that their entire function and raison d’être relates to national security and that therefore the information they hold is necessarily connected with that. 

The Security Service Act 1989 and the Intelligence Services Act 1994 both make express provision that the heads of those organisations are to make arrangements to ensure that no information is obtained by their agency 

“except so far as necessary for the proper discharge of its functions”. 

Adding to that the qualifier 

“where that information relates to national security or the interests of the United Kingdom” 

would serve only to confuse the matter and would create further potential for more unnecessary litigation.  

I understand that the thrust behind the amendment is to exclude from statutory protection information held by the agencies the disclosure of which would not be damaging to national security. The fact is that material sought from the intelligence services by Norwich Pharmacal applicants is material the disclosure of which would damage the interests of national security or international relations. Applicants in such cases are not seeking unclassified material from the Government. The hon. Lady gave two examples. One was a cleaner employed by G4S—or another contractor, of course—and working in the SIS building who injures themselves and wishes to seek redress. In such a circumstance, there would be nothing to prevent the cleaner from suing SIS, which could then decide, if it wished, to join G4S to the proceedings. The cleaner could obtain disclosure through the usual routes by doing exactly that. 

The hon. Lady also raised the case of Gareth Williams. As far as that case is concerned, I agree with her and with the right hon. Member for Torfaen that it raises significant concerns. It would be odd if some action was not taken directly against the security services as an employer; action could also be taken directly against the Metropolitan police. 

I understand the concerns raised about the breadth of the provisions, but it does not seem to me that if we pass the Bill as it stands we will be excluding the sort of applicants the hon. Lady mentioned from the type of relief that she described. 

Diana Johnson:  I am interested in what the Minister has said about the two examples I gave. He is obviously closing down the potential for various claims to be made by saying that a claim could be made directly to SIS or directly to the employer, in the case of Gareth Williams. However, that is not what the clause is about; it is about the control principle. That is what it is meant to deal with, not the other issues that the Minister is now trying to close down. 

Jeremy Wright:  The clause is certainly partly about the control principle but the hon. Lady is absolutely right: the purpose of the Norwich Pharmacal jurisdiction is to allow people to get information that they need in order to pursue a third party. My point is that, in relation to the examples she gave, the Norwich Pharmacal

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jurisdiction would not be necessary; people can obtain that sort of information through other routes, so excluding people with those types of cases from the Norwich Pharmacal jurisdiction does not exclude them from the relief that they are seeking. That is the point; we are not excluding people from relief by doing what we are here proposing to do. 

Examples of the information that we are seeking to protect are information that is derived from sensitive sources, information that might reveal sensitive techniques and capability, or information that is shared by a foreign intelligence partner. Disclosure of any material in those categories would cause damage to the UK’s national security, and, in turn, to international relations. Although, as I have said, we can see the rationale behind amendment 78, we do not believe that it is necessary or practical. It would allow uncertainty to remain in this area of law and could open up more avenues for challenge by litigation, which would divert our security and intelligence services from their front-line duties or from protecting the public. 

Amendment 81 would remove clause 14(3)(d), which contains the protection for sensitive information relating to an intelligence service. That would create vulnerabilities: that category of information would include information held by other Government Departments, as the hon. Lady said, relating to operations and investigations, as well as other information. The hon. Member for Edinburgh West asked me to be specific about the kinds of information we would be talking about here. It could include threat assessments in relation to sabotage, espionage and terrorism; assessments of vulnerabilities in critical national infrastructure or systems; military plans; weapons systems; and information on the development or proliferation of nuclear weapons overseas. Work done in other Government Departments on national security policy and intelligence policy would also not be protected if clause 14(3)(d) were removed. 

Other information that the protection might apply to would be work done in the Cabinet Office, Home Office or Foreign Office on the funding, capabilities and staffing of the intelligence services held by other Government Departments. The hon. Lady, and I am sure the rest of the Committee, will see why it would be desirable to protect that type of information. The amendment would leave all these types of information without statutory protection. 

Mike Crockart:  I accept what the Minister is saying about the definition used in the amendments by the Labour party, but all the types of information he is

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talking about would be covered by the definition used by the ISC, which is my point. Perhaps he can deal with that directly. 

Jeremy Wright:  The point, I think, is about information that is not held by the agencies themselves, but by others, that relates to the agencies. That is why the provision is included in the Bill. It would not be covered by the ISC’s definition, and that is the point. The disclosure of this information would be damaging to the intelligence services’ operations and to the interests of the United Kingdom’s national security. It should therefore remain within the definition of sensitive information exempt from disclosure. 

In conclusion, I reiterate that Norwich Pharmacal has nothing whatever to do with allegations of wrongdoing by the UK Government or our intelligence services. The Bill does not take away any right to bring a claim against the Government. If someone has evidence that the UK Government or intelligence services have been directly involved in wrongdoing, they can still bring a claim against the Government. If someone believes their convention rights have been infringed, they can still seek to enforce them. If there is evidence of a criminal offence on which the UK courts have jurisdiction, that can be referred to the police. Where disclosure of information—this is the point that my hon. Friend the Member for Bromley and Chislehurst was making—to a person who may have no connection to the UK and who has thought or is thinking about proceedings involving a party that is not the UK Government would harm our vital interests of national security or international relations, that is unacceptable. 

We must recall that these types of proceedings affect only a very small number of individuals but have a disproportionate effect on our national security and international relations. If we do not legislate in a way that provides sufficient clarity, our intelligence-sharing relationships stand at risk of deteriorating well beyond the point of restrictions that were placed on us in 2008. I hope that the Committee will forgive me for outlining those arguments in some depth, but I have explained, I hope, why the Government resist these amendments. On that basis, I invite the hon. Lady to withdraw her amendment. 

Ordered, That further consideration be now adjourned. —(Mr Evennett.)  

1.2 pm 

Adjourned till this day at Two o’clock.  

Prepared 8th February 2013