Legislative Scrutiny: Justice and Security Bill - Human Rights Joint Committee Contents


2  The scope of the Bill

The Bill's narrower scope compared to the Green Paper

20.  In our Report on the Green Paper, we were critical of the wide scope of the Government's proposals for extending the availability of closed material procedures in civil proceedings. The proposals would have applied to the disclosure of any "sensitive material" the disclosure of which may harm "the public interest", both of which terms were defined very broadly in the Green Paper.[10]

21.  We welcomed the Secretary of State's reassurance to us in evidence that the Government's intentions were in fact very much narrower, and confined to the "narrow problem" of cases where relevant evidence could be given by the intelligence services and is derived by the service using either sources or technological methods of which the parties are unaware.[11] We recommended that the scope of the Bill reflect this much narrower intention and be confined to national security-sensitive material, that is, material the disclosure of which carries a real risk of harm to national security.[12]

22.  In its response to our Report the Government said that it had considered the matter very carefully, listened to the consultation responses and had "agreed with the Committee that the provisions contained within the Justice and Security Bill for CMPs will be applied only to a small number of civil cases where the open disclosure of relevant material could cause harm to national security (or harm to other very limited public interests in exclusion or naturalisation proceedings).[13]

23.  The Bill itself provides for CMPs to be available in proceedings in which there would be disclosure of material which would be "damaging to the interests of national security."[14] We welcome the narrower definition of the scope of Part 2 of the Bill, which is a significant improvement on the much broader proposals in the Green Paper for closed material procedures to be available in cases involving the disclosure of "sensitive material" which could harm a very broadly defined "public interest."

What material is intended to be protected by CMPs?

24.  There is continuing concern, however, about the scope of the Bill's coverage because of the potential breadth of the concept "the interests of national security". Some have called for the Bill to define precisely what is meant by the phrase. We recognise that a statutory definition of "national security" would be without precedent, and might be unhelpful where that term is used in other statutory contexts. We therefore do not recommend that the Bill be amended to define the interests of national security in this particular context.

25.  However, we believe that there is scope for the Government to provide further reassurance to Parliament about the scope of the Bill by clarifying the sort of material that is intended to be covered by the Bill's provisions extending the availability of CMPs.

26.  The scope of the proposals for CMPs in the Green Paper was also criticised by the Intelligence and Security Committee ("the ISC"). The ISC broadly welcomed the proposals in the Green Paper, but regarded the scope of the material to be protected as "key". Its view is explained in full in its Annual Report:[15]

    149. [...] the scope of the material to be protected in this way is key, and this is where the Committee considered that the Green Paper did not offer sufficient clarity. The safety of the British public will, in very special cases, provide justification for altering the usual trial procedures. However, the Committee argued that the material to be protected must be such that it really would jeopardise the national security of the UK if it were to be made public. These special arrangements, therefore, must be the exception, not the rule, and the provisions must not be abused.

    150. Not all sensitive material warrants such special treatment, for example, the Green Paper mentioned diplomatic exchanges and there were suggestions that 'the public interest' rather than national security, should be the determining factor in deciding whether closed material procedures (CMPs) should be ordered. This was too broad by far—we argued that the Committee could not support such a broad definition of 'sensitive information'. The Committee was clear that the special arrangements should not be used to avoid difficult or embarrassing situations. Nor should material be excluded simply because it is labelled as 'secret'.

    151. There are only two narrow categories of information which can rightly be said to be that sensitive:

    ·  The first is UK intelligence material which would, if disclosed publicly, reveal the identity of UK intelligence officers or their sources, and their capability (including the techniques and methodology that they use);

    ·  The second is foreign intelligence material, provided by another country on a strict promise of confidentiality.

27.  In a Statement on the Green Paper issued on behalf of the Committee by its Chairman the Rt Hon Sir Malcolm Rifkind MP, in March 2012, the ISC said:[16]

    "The focus must be only on the genuinely sensitive intelligence material of our Agencies, and the foreign intelligence material that we have given our word to protect. It is this material and this material alone that is critical to our national interest.

    The current uncertainty around the scope of the proposals has been damaging and threatens to undermine the value of those parts of the proposals that are genuinely important, and not only justified but essential. This Committee believes that it is now vital that the Government set out, in very clear terms, exactly what material will and will not be protected under these proposals. Parliament and the public must be reassured that any changes to legal proceedings will be minimal, and restricted to those situations where the alternative would be damage to our national security and the safety of the British public."

28.  Although the scope of the CMP provisions in the Bill is narrower than the scope of the Green Paper, because they are confined to material the disclosure of which would be damaging to national security, the Government has not, to the best of our knowledge, set out in very clear terms exactly what material will and will not be protected from disclosure under the Bill's proposals, as it was invited to do by the ISC.

29.  We recommend that the Government confirm to Parliament that the material which is intended to be protected from disclosure by the provisions in Part 2 of the Bill is confined to the two narrow categories of information identified by the Intelligence and Security Committee:

·  UK intelligence material which would, if disclosed publicly, reveal the identity of UK intelligence officers or their sources, and their capability (including the techniques and methodology that they use); and

·  foreign intelligence material, provided by another country on a promise of confidentiality (that is, "control principle" material).

30.  We also recommend that the Government confirm to Parliament that clauses 6-11 of the Bill are not intended to cover material the disclosure of which would be damaging to international relations, such as diplomatic exchanges.

The scope of the Bill's Norwich Pharmacal provisions

31.  The scope of the Bill's provisions concerning the courts' Norwich Pharmacal jurisdiction is dealt with separately in the Bill,[17] and is considered in chapter 4 below.

The power to extend the Bill's scope

32.  The Bill gives the Secretary of State the power[18] to extend the scope of the Act by order, by amending the definition of "relevant civil proceedings"[19] in which CMPs are to be available. Such an order would be subject to the affirmative resolution procedure. This is a wide-ranging power. In principle it would be capable of being exercised to extend the availability of CMPs to inquests. In our view such a significant step should only be taken in primary legislation. We recommend that clause 11(2) be deleted from the Bill.


10   JCHR Report on the Green Paper, paras 36-47. Back

11   Oral evidence of Rt Hon Kenneth Clarke QC MP, Lord Chancellor and Secretary of State for Justice, 6 March 2012, Q190. Back

12   JCHR Report on the Green Paper, para. 45. Back

13   Government Response to JCHR Report, pp. 1-2. Back

14   Clause 6(2)(b). Back

15   Intelligence and Security Committee, Annual Report 2011-12, Cm 8403 (July 2012). Back

16   ISC Press Release on the Government's Green Paper on Justice and Security, 27 March 2012. Back

17   Clause 13(3). Back

18   Clause 11(2). Back

19   As defined in clause 6(7). Back


 
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Prepared 13 November 2012