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

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 by order

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.[14]

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,[15] 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 crime.

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."[16]

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" material).[17]

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 Court

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.[18] This amendment came after the publication of our Report on the Bill and we therefore have not yet had the opportunity to consider this issue.

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.[19]

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

15   First Report on the Bill, para. 31. Back

16   Clause 6(11). Back

17   First Report on the Bill, para. 30. Back

18   Clause 6(9)(d). Back

19   Bank Mellatt v HM Treasury (hearing before UK Supreme Court expected in March 2013). Back

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Prepared 28 February 2013