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.
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.
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.
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).
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."
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
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:
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
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 farwe 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:
"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
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
31. The scope of the Bill's provisions concerning
the courts' Norwich Pharmacal jurisdiction is dealt with separately
in the Bill, and
is considered in chapter 4 below.
The power to extend the Bill's
32. The Bill gives the Secretary of State the
power to extend the
scope of the Act by order, by amending the definition of "relevant
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
Oral evidence of Rt Hon Kenneth Clarke QC MP, Lord Chancellor
and Secretary of State for Justice, 6 March 2012, Q190. Back
JCHR Report on the Green Paper, para. 45. Back
Government Response to JCHR Report, pp. 1-2. Back
Clause 6(2)(b). Back
Intelligence and Security Committee, Annual Report 2011-12,
Cm 8403 (July 2012). Back
ISC Press Release on the Government's Green Paper on Justice and
Security, 27 March 2012. Back
Clause 13(3). Back
Clause 11(2). Back
As defined in clause 6(7). Back