Legislative Scrutiny: Justice and Security Bill (second report) - Joint Committee on Human Rights Contents

1  Background

Date introduced to first House  28 May 2012

Date introduced to second House  28 November 2012

Current Bill Number      HC Bill 134

Previous Reports      24th Report of Session 2010-12

4th Report of Session 2012-13


1.  The Justice and Security Bill received its Second Reading in the House of Commons on 18 December 2012, completed its Committee Stage on 7 February and is currently awaiting a date for its Report Stage.

2.  We held an inquiry into the Green Paper which preceded the Bill and published our Report on it in April 2012.[1] On 13 November 2012 we reported on the Bill as introduced in the House of Lords.[2] In that Report we recommended a number of amendments in order to address concerns we had about the Bill's compatibility with the UK's constitutional tradition of open justice and fairness. Some of those recommended amendments were made to the Bill by the House of Lords at Report stage.

3.  At the Bill's Second Reading in the Commons, on 18 December 2012, the Minister without Portfolio, the Rt. Hon. Kenneth Clarke QC MP (who leads for the Government on the Bill), explained that the Government was still considering carefully the recommendations in our Report as well as the significant changes made to the Bill in the Lords. On 11 January 2013, the Minister wrote to us regretting that he was still not in a position to respond in full to our Report but stating that he intended to do so very shortly and before the Bill's Committee Stage.[3]

4.  The Government published its response to our Report on the Bill on 29 January.[4] On the same date it also tabled a number of amendments to the Bill to be considered in Public Bill Committee. These included amendments which proposed to remove amendments made by the House of Lords to give effect to some of our recommendations, and replace them with the Government's own amendments.

5.  The Government amendments removing the Lords amendments were agreed to by 10 votes to 9 in Public Bill Committee.[5] Two further amendments proposed by members of the Public Bill Committee, which would have given effect to recommendations in our earlier Report, were negatived on the casting vote of the Chair following a tied vote.[6]

6.  We then wrote to the Minister on 5 February asking a number of detailed questions about certain aspects of the Government's amendments.[7] The Minister replied by letter dated 11 February,[8] offering to make himself available at short notice to give oral evidence. He appeared before us on 12 February when we were able to discuss some of our questions directly with him. A transcript of his evidence is available on the Committee's website.[9] We are grateful to the Minister for volunteering to give oral evidence to us and for doing so in time to inform our scrutiny of the Government's amendments.

7.  On 18 February we also received a detailed written response from the Minister to the questions raised in our letter of 5 February.[10]

The opportunity for proper scrutiny

8.  We are grateful to the Government for its engagement with us and we welcome some aspects of the Government's amendments. We regret, however, that the Government's response to our Report and amendments to the Bill were not published until 29 January, on the eve of the Bill's Committee Stage. Our Report on the Bill was published on 13 November 2012 and the House of Lords amendments to the Bill were made at Report stage in that House on 21 November. Publication of the Government's amendments to coincide with the Public Bill Committee's consideration of the Bill did not provide a proper opportunity for us to scrutinise the Government's amendments and report our views to the House before the next stage of its consideration by Parliament.

9.  This is particularly regrettable when the purpose of the Government's amendments is to remove from the Bill some of the significant amendments made by the House of Lords on our recommendation and to substitute different amendments which the Government says are intended to reflect our recommendations. It is in the interests of proper scrutiny that the House of Commons should have the benefit of our views as to whether the Government's amendments do in fact give effect to our recommendations as the Government asserts.

10.  We asked the Government for its assurance that the Bill's Report stage would not be scheduled until we had had a reasonable opportunity to report to Parliament our views about the Government's amendments, but this assurance was not forthcoming.[11] In the event, we hope that our Report will be able to inform the Bill's Report Stage nevertheless. We find it unsatisfactory that there may not be an opportunity for this Committee to be able to inform proper parliamentary scrutiny of Government amendments that are asserted to give effect to recommendations that we have made. We recommend that where the Government amends a Bill in response to specific recommendations from a parliamentary committee, that committee be given a reasonable opportunity to scrutinise the Government's amendments and report their views to Parliament before the amendments are debated.

Information considered in our scrutiny of the Government's amendments

11.  We have continued to receive submissions about the Bill and we have taken these into account. We were sent a copy of Neither Just Nor Secure, a publication for the Centre for Policy Studies by Andrew Tyrie MP and Tony Peto QC. We have also received a Supplementary Memorandum dated 18 February 2013 from 19 Special Advocates, comprising "almost all currently active Special Advocates".[12] We refer to this supplementary evidence where relevant in this Report. We are grateful to those who have continued to assist us in our ongoing scrutiny of the Bill.

12.  We have also taken into account the debates which took place on the Bill in Public Bill Committee.

The purpose of this Report

13.  In his foreword to the Government response, the Minister stated his belief that the Government response and its amendments to the Bill "demonstrate that there is nothing between the Committee and the Government on the major principles at issue. The approach we are taking reflects their recommendations on these principles of justice very closely." He reiterated that view in his oral evidence, saying that there is no division of principle between the Government and this Committee, and that, with its amendments, the Government has moved entirely in line with our recommendations.[13]

14.  The main purpose of this Report is to subject to careful scrutiny the claim that the Government's amendments reflect our recommendations in our first Report on the Bill. To the extent that we are not satisfied that they do so, we recommend further amendments to the Bill for consideration at Report stage. This is a controversial Bill which has raised concerns across party-political boundaries and across both Houses of Parliament. There were therefore some reasonable differences of opinion expressed during our consideration of the Bill which echoed those concerns.

1   Twenty-fourth Report of Session 2010-12, The Justice and Security Green Paper, HL Paper 286/HC 1777 (hereafter "JCHRReport on the Green Paper").See for the Government's Response, Response to the Twenty-Fourth Report from the Joint Committee on Human Rights 2010-12: The Justice and Security Green Paper, CM 8365 (May 2012). Back

2   Fourth Report of Session 2012-13, Legislative Scrutiny: Justice and Security Bill, HL Paper 59/HC 370 (hereafter "First JCHR Report on the Bill"). Back

3   Ev 1 Back

4   HM Government Response to the Joint Committee on Human Rights Fourth Report of Session 2012-13: Legislative Scrutiny: Justice and Security Bill (Cm 8533) (hereafter "Government Response"). Back

5   PBC 5 February 2013 col 197. Back

6   PBC 5 February 2013 col 228-9. Back

7   Ev2. Back

8   Ev 3 Back

9   http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/publications/. Back

10   Ev 4. Back

11   Q87. Back

12   Ev 5 Back

13   Q88. Back

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Prepared 28 February 2013