2 The scope of the Bill
15. We welcome the Government's acceptance of
a number of our recommendations about the scope of the Bill.
Power to add courts or tribunals
16. In our first Report on the Bill we recommended
that the power it proposed to give to the Secretary of State to
amend the scope of the Act in the future by order, by amending
the definition of "relevant civil proceedings" in which
closed material procedures ("CMPs") are to be available,
be deleted from the Bill.
17. The Government has accepted this recommendation,
and tabled an amendment at Lords Report stage removing the order-making
power. We welcome the Government's
amendment of the Bill to remove the power to extend the scope
of the Act by order.
Damage to international relations
18. The Government response has confirmed, as
we requested, that
CMPs under the Bill will only be available in relation to material
which the court is persuaded would damage the interests of national
security if it were openly disclosed, and will not be available
in relation to material the disclosure of which would be damaging
to international relations or to the prevention or detection of
19. In the amended Bill this is achieved by making
the CMP provisions apply to "sensitive material" which
is defined to mean "material the disclosure of which would
be damaging to the interests of national security."
20. We welcome the Government's
clarification that the CMP provisions in the Bill apply only to
material the disclosure of which would be damaging to national
security. We are satisfied that this lays to rest any uncertainty
about whether the scope of the Bill's provisions on CMPs extends
to damage to international relations.
Definition of material disclosure
of which would damage national security
21. In our Report we did not recommend that the
Bill should define the meaning of "national security"
in this context. However, we did ask the Government to confirm
to Parliament that the material which is intended to be protected
from disclosure by the CMP provisions in the Bill is confined
to the two narrow categories of information identified by the
Intelligence and Security Committee as posing a real risk to national
security if disclosed, namely:
- UK intelligence material which
would, if publicly disclosed, reveal the identity of UK intelligence
officers or their sources, and their capability (including techniques
and methodology); and
- Foreign intelligence material provided by another
country on a promise of confidentiality ("control principle"
22. The Government in its response has refused
to provide that confirmation. It agrees that a statutory definition
of national security should not be included in the Bill, but it
says attempts to define the types of material that would damage
the interests of national security if disclosed would also be
"unhelpful" because it risks leaving a "shortfall"
in the scope of the legislation. The Government criticises the
language suggested by the ISC for being too narrow, arguing that
it would not include, for example, material that is sensitive
because its disclosure would jeopardise an ongoing national security
intelligence operation. The Government prefers not to narrow the
scope of the Bill in this way but to leave it to the judge to
decide whether or not the Minister's assessment that there would
be genuine damage to the interests of national security is correct.
23. We would prefer to see the
Bill amended to include an express reference to the type of material
that the Intelligence and Security Committee considers would be
really damaging to the interests of national security if disclosed.
We recommend that the definition of "sensitive information"
in clause 6(11) of the Bill be amended to confine it to the wording
suggested by the ISC. The following amendment
would give effect to this recommendation:
Clause 6(11), Page 6, line 24, after 'security' insert
'because it is:
(a) UK intelligence material which would reveal
the identity of UK intelligence officers or their sources, and
their capability (including the techniques and methodology that
they use); or
(b) foreign intelligence material, provided by
another country on a promise of confidentiality.'
Availability of CMPs in Supreme
24. The Bill provides for CMPs to be available
in proceedings before the Supreme Court, as a result of a Government
amendment to the Bill at Report stage in the House of Lords.
This amendment came after the publication of our Report on the
Bill and we therefore have not yet had the opportunity to consider
25. Neither the Supreme Court nor the House of
Lords before it have, to date, made use of a CMP, even when considering
appeals in proceedings in which CMPs have already been made available
by statute and have been used by the courts below in the proceedings
in question (eg. in appeals from SIAC or in control order or terrorist
asset-freezing cases). In a case pending before the Supreme Court,
however, concerning financial restrictions imposed on an Iranian
bank by the Treasury, the Government is asking the Supreme Court
to consider a closed judgment of a lower court following a closed
material procedure during which intelligence material was shown
to the court but not to the bank or its legal representatives.
26. We asked the Government whether the President
of the Supreme Court has been consulted about adding the Supreme
Court to the list of courts in clause 6(9) of the Bill in which
CMPs are to be made available in civil proceedings and, if so,
what was his view. The Government replied that the Ministry of
Justice discussed the matter with UK Supreme Court officials,
but the Supreme Court Justices did not consider it necessary or
appropriate to comment.
27. We also asked the Government why it considered
it necessary to provide for CMPs before the UK's highest court,
the function of which is to hear appeals on points of law of general
public importance. The Government's concern is to make sure that
CMPs are available in appeals in proceedings in which a CMP has
been used in a court below, because it is conceivable that a CMP
might also be necessary on appeal, for example if factual material
is relevant to the issues on appeal. Although the Government
is not aware of any case before the Supreme Court in which a CMP
has been used, it points out that the Supreme Court Rules already
make provision for such a procedure.
28. We accept in principle that,
if CMPs are to be available in civil proceedings before lower
courts, they ought also to be available before the Supreme Court.
However, we would envisage that a CMP would only be very rarely
used in the Supreme Court in proceedings where a CMP was used
below and where it is absolutely necessary for the determination
of the issues in the appeal. We recommend that the Government
make clear the sorts of circumstances in which a CMP may be appropriate
in civil proceedings before the Supreme Court.
14 First Report on the Bill, para. 33. Back
First Report on the Bill, para. 31. Back
Clause 6(11). Back
First Report on the Bill, para. 30. Back
Clause 6(9)(d). Back
Bank Mellatt v HM Treasury (hearing before UK Supreme Court
expected in March 2013). Back