The noble Lord, Lord Beecham, asked about the number of cases that had been settled and how much compensation was paid. As I have explained previously, I am not able to comment on the number or details of many of the cases settled as they are often the subject of confidentiality agreements. However, the House will be aware—indeed, my noble friend Lady Berridge referred to it—that a settlement was recently reached with Mr al-Saadi, on a no-liability basis, to the tune of £2.2 million. I am unable to comment on whether actions have been taken against recipients of other settlements. If such actions have been taken, it would be impossible to comment without breaching the terms of the settlement because it could, for example, indirectly reveal the identity of the individuals concerned.

My noble friend Lady Berridge suggested that perhaps the Government had rushed a settlement to get it in before this legislation went onto the statute book. I am sure that noble Lords will agree that it is not desirable for courts to delay the processing of cases in pre-emptive speculation about what may or may not become available in future legislation. It is unhelpful to suggest that that should be the case. It was and is right that the case of Mr al-Saadi and others should be dealt with quickly and fairly on the basis of existing legislation. The alternative of delaying, pending possible future legislative changes, would be unfair to all parties concerned. I certainly would not like to defend such a situation from the Dispatch Box if that allegation ever had any truth.

The noble and learned Lord, Lord Goldsmith, said that, unlike cases in which he was involved when he was in government and introduced closed material proceedings with regard to control orders under which there were restrictions on freedom, what we are dealing with here is just about money. It is about more than just money; it is also about the reputation of, and the trust and confidence in, our security intelligence agencies. It may also be about executive actions—for example, the judicial review of decisions taken by a Secretary of State on national security grounds which would not be the subject of pre-existing statutory CMPs.

As I have said, it is not just a question about money because, at the end of the day, we are trying to ensure that there will be some kind of proceedings available whereby taxpayers’ money is not spent in settling cases where the case has not been proved. My noble friend Lord Phillips of Sudbury referred to secret justice. I have said in these debates that it is second-best justice, but at least it is justice. There is no justice when cases are settled without any proof of the claim being made.

26 Mar 2013 : Column 1051

The importance of the safeguards and how we keep these cases to a minimum—they should be the exception—has been reflected in the debate tonight. My noble friend Lord Macdonald has tabled an amendment that would require the courts to have a balancing test akin to the Wiley balancing test that was developed in the context of public interest immunity. The noble and learned Lord, Lord Lloyd of Berwick, explained why he thought that was inappropriate; he said that it was too wide and imprecise. The noble Lord, Lord Owen, and the noble Baroness, Lady Manningham-Buller, indicated that we are also dealing with situations where there might be foreign sources of intelligence and, crucially, human sources who work on our behalf for our security services. They expressed concern that the imprecision of the test would not be helpful.

My noble friend said that he thought the effect of the Bill as it currently stands, without his amendment, would be that the security services and the Government would opt for CMP rather than PII, public interest immunity, and that somehow that would be convenient for them. The noble Baroness, Lady Manningham-Buller, made the important point that Part 1 of the Bill is about scrutiny of the security services, but Part 2 allows for greater scrutiny. If you wish to push something under the carpet, PII, or settling a case without any evidence being led, is one way of ensuring that information does not come out. Albeit closed material proceedings are closed—for all the reasons that people have articulated in this debate they are not as good as open proceedings—they nevertheless allow the court to examine the material that is there and to apply scrutiny to allegations made against our security services, which otherwise would not be the case.

Regarding openness, my noble friend Lady Berridge referred to the president of the Supreme Court, the noble and learned Lord, Lord Neuberger, and what he said this weekend. The point that was picked up by the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, helps make the point that we have been trying to make. Of course, as more than one contributor to this debate has said, the idea of openness is absolutely intrinsic to our system of justice. The noble and learned Lord, Lord Neuberger, reflected that in his comments this week. It was intrinsic and it was instinctive.

It is absolutely fanciful to imagine that, in applying the tests set out by the Government in the amendments before your Lordships’ House tonight, the judges will somehow forget about openness. It is very clear that the justices of the Supreme Court did not need words in a statute to get them to apply their minds to the importance of openness when it came to making the decision, which they did.

Lord Thomas of Gresford: Is my noble and learned friend saying that the judges will apply a balancing test when they exercise their discretion between open justice and the interests of national security—that that is implicit in everything he is saying?

Lord Wallace of Tankerness: My Lords, it is very clear that open justice is part of our justice system. It is implied by the words “fair and effective”, and it did not need any words in statute to encourage the justices

26 Mar 2013 : Column 1052

of the Supreme Court to have regard to the importance of openness in these situations. The noble and learned Lord, Lord Neuberger, said the following words, to which I think my noble friend Lady Berridge referred:

“No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented”.

He went on to say:

“Nonetheless, as Parliament has decided that, in certain circumstances, such a procedure is necessary and permissible in a trial before a judge, we have concluded that, on an appeal from a decision in a case where a judge has considered closed material and given a closed judgment, it may be necessary for this court to go into closed session in order to dispose of the appeal justly”.

In other words, the just decision on that particular point was that the court would go into closed session.

On the other issue, I also do not find there to be any real difference in what Members of your Lordships’ House wish to see, and it is an issue of judgment as to how we achieve it. These cases should be the rare exceptions; there are a very small number of cases. When I gave evidence by letter to the Joint Committee on Human Rights on 31 October, there were 27 cases which, across government, we considered would lend themselves to closed material proceedings. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, expressed his view as to why closed material proceedings were necessary, but in his judgment these amendments should be in the Bill. I have explained this, and indeed others who have contributed to the debate have also explained why it is not necessary.

We all aim at the same thing: at the end of the day, this should take place in a small number of cases. It is a matter of judgment. As I indicated earlier, at this initial gateway of closed material proceedings the court is considering an application having not yet seen all the material for the case. Against this background, we are keen that legislation should avoid the court being required to meet a condition which would then require it to establish definitively at that point whether a fair determination would be possible by any other means.

As I said, that could mean the exhaustion of a range of measures, including a full PII exercise. Of course, as the noble Baroness, Lady Kennedy of The Shaws, said, it is something to which the Secretary of State should apply his or her mind. If one reads the judgment of Lord Brown in Al Rawi, he indicates at one point that it would take 60 lawyers the best part of two or three years to go through all the material. That is the scale. If that is the road down which judges felt that they ought to go because of the wording of the Bill, that would underline much of its purpose.

I also pick up the point made by the noble and learned Lord, Lord Goldsmith, who seemed to think that the means of achieving it being a backstop and a rare exception was the provision in proposed new subsection (1F) about the court having to be satisfied that the Secretary of State had considered PII. We do not even get to that stage, because the court must not even consider the application unless it is satisfied that the Secretary of State has considered PII. The question asked by the noble Lord, Lord Butler of Brockwell, was very much to the point: the safeguards of last resort, as it were, are not that requirement on the Secretary of State but, rather, the courts being satisfied that the disclosure of material would be damaging to

26 Mar 2013 : Column 1053

national security, and that it would be in the interests of the fair and effective administration of justice for the application to be granted.

9.15 pm

Baroness Kennedy of The Shaws: My Lords, I point out to the Minister that I, too, am a member of the Joint Committee on Human Rights. We looked at whether it would take many months for the Secretary of State to review the material. We were firmly of the view that that is not what is required of the Secretary of State at all. It is only about looking at material that would move it into in the special category which would mean that it would require closed material proceedings. This business that it would take insurmountable periods of time to examine the material is not what we are talking about. The Joint Committee was absolutely satisfied on that.

Lord Wallace of Tankerness: My Lords, I fully accept that the Joint Committee on Human Rights and your Lordships’ Constitution Committee have said that it would be undesirable to go down the path of an exhaustive PII. The point that I am trying to make to your Lordships’ House is that when we make law, the Joint Committee on Human Rights will not be deciding how it is interpreted, it will be the courts. The courts will no doubt be at the receiving end of very eloquent and persuasive arguments from special advocates as to why they should exhaust different routes. That is our concern: if we include such words in the Bill which allow such arguments to be made, the courts may well feel that they must take those exhaustive steps before entertaining an application for closed material proceedings. We believe that that would take away much of the purpose of the provisions.

In conclusion, it is not as if we are just leaving it there. As I said in my opening remarks, we believe that the tests that we have in place, giving considerable discretion to the judges, the revocation possibilities during the review and the disclosure phase, and the requirement on the court to consider at the end of all the disclosure whether closed material proceedings should still continue constitute a very powerful weapon in the hands of the court and at judges’ discretion that will ensure that those procedures will be used only in truly exceptional cases.

My noble friend Lady Hamwee asked about the change from “must” to “may”. She is absolutely right: it is only if all those conditions are fulfilled that the court may grant an application for and make a declaration of closed material proceedings. Even at that stage, the court has discretion whether or not to do so. The noble and learned Lord, Lord Woolf, asked whether it gives the judges discretion to do the right thing in the circumstances of the particular case. I very much believe that what we have put in place in the other place does that. I fear that to accept the amendments could in some ways undermine that, although I fully understand why they have been moved. I believe that we have the right discretion for our judges in place. As the noble and learned Lord, Lord Goldsmith, said, trust the judges. On that basis, I beg to move.

Motion on Amendment 4 agreed.

26 Mar 2013 : Column 1054

Motion on Amendment 5

Moved by Lord Wallace of Tankerness

That this House do agree with the Commons in their Amendment 5.

5: Page 4, line 20, at end insert—

“(1A) The court may make such a declaration—

(a) on the application of—

(i) the Secretary of State (whether or not the Secretary of State is a party to the proceedings), or

(ii) any party to the proceedings, or

(b) of its own motion.”

Motion agreed.

Motion on Amendment 6

Moved by Lord Wallace of Tankerness

That this House do agree with the Commons in their Amendment 6.

6: Page 4, line 21, leave out subsections (2) to (6) and insert—

“(1B) The court may make such a declaration if it considers that the following two conditions are met.

(1C) The first condition is that—

(a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or

(b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following—

(i) the possibility of a claim for public interest immunity in relation to the material,

(ii) the fact that there would be no requirement to disclose if the party chose not to rely on the material,

(iii) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material),

(iv) any other enactment that would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.

(1D) The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.

(1E) The two conditions are met if the court considers that they are met in relation to any material that would be required to be disclosed in the course of the proceedings (and an application under subsection (1A)(a) need not be based on all of the material that might meet the conditions or on material that the applicant would be required to disclose).

(1F) The court must not consider an application by the Secretary of State under subsection (1A)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application is based.

(1G) A declaration under this section must identify the party or parties to the proceedings who would be required to disclose the sensitive material (“a relevant person”).”

Amendment 6A (as an amendment to Commons Amendment 6)

Moved by Lord Beecham

6A: Line 2, at beginning insert “If the court considers that a fair determination of the proceedings is not possible by any other means,”

Lord Beecham: My Lords, your Lordships will be at one with the noble and learned Lord, Lord Mackay of Clashfern, in agreeing that it is the prime duty of

26 Mar 2013 : Column 1055

government to protect the national security. That is currently being achieved by a variety of means, including PII. It would continue to be achieved under the terms of this amendment if your Lordships’ House agrees to it and if that is confirmed by the House of Commons. Your Lordships’ House is usually and naturally reluctant to overturn Commons amendments. There can be no better or more necessary occasion to do so than when issues profoundly affecting our system of justice or the rights of citizens are at stake. This is just such an occasion. I beg to move and test the opinion of the House.

9.21 pm

Division on Amendment 6A

Contents 158; Not-Contents 174.

Amendment 6A disagreed.

Division No.  2

CONTENTS

Adams of Craigielea, B.

Alli, L.

Anderson of Swansea, L.

Andrews, B.

Avebury, L.

Bach, L.

Bakewell, B.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley, L.

Bew, L.

Bilston, L.

Bradley, L.

Brinton, B.

Brookman, L.

Brown of Eaton-under-Heywood, L.

Browne of Ladyton, L.

Canterbury, Abp.

Carter of Coles, L.

Chandos, V.

Collins of Highbury, L.

Corston, B.

Cotter, L.

Crawley, B.

Davies of Coity, L.

Davies of Oldham, L.

Doocey, B.

Dubs, L.

Dykes, L.

Elder, L.

Elystan-Morgan, L.

Evans of Parkside, L.

Falconer of Thoroton, L.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Golding, B.

Goldsmith, L.

Gordon of Strathblane, L.

Gould of Potternewton, B.

Grantchester, L.

Greaves, L.

Grenfell, L.

Grey-Thompson, B.

Griffiths of Burry Port, L.

Grocott, L.

Hamwee, B.

Harries of Pentregarth, L.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haworth, L.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Hilton of Eggardon, B.

Hodgson of Astley Abbotts, L.

Hollis of Heigham, B.

Howe of Idlicote, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Hussain, L.

Hutton of Furness, L.

Hylton, L.

Jones, L.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kidron, B.

King of Bow, B.

Kirkhill, L.

Kirkwood of Kirkhope, L.

Knight of Weymouth, L.

Layard, L.

Lea of Crondall, L.

Lester of Herne Hill, L.

Liddle, L.

Linklater of Butterstone, B.

Lister of Burtersett, B.

McAvoy, L.

McDonagh, B.

Macdonald of River Glaven, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

McKenzie of Luton, L.

Maclennan of Rogart, L.

Mallalieu, B.

Masham of Ilton, B.

26 Mar 2013 : Column 1056

Maxton, L.

Meacher, B.

Miller of Chilthorne Domer, B.

Mitchell, L.

Morris of Aberavon, L.

Morris of Handsworth, L.

Moser, L.

Nye, B.

Oakeshott of Seagrove Bay, L.

O'Neill of Clackmannan, L.

Owen, L.

Phillips of Sudbury, L.

Pitkeathley, B.

Ponsonby of Shulbrede, L.

Prashar, B.

Prescott, L.

Prosser, B.

Quin, B.

Radice, L.

Rendell of Babergh, B.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L.

Rooker, L.

Rosser, L.

Rowlands, L.

Royall of Blaisdon, B.

Sawyer, L.

Scotland of Asthal, B.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Clifton, L.

Smith of Finsbury, L.

Soley, L.

Steel of Aikwood, L.

Stern, B.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Strasburger, L.

Symons of Vernham Dean, B.

Thomas of Gresford, L.

Thomas of Winchester, B.

Thornton, B.

Tomlinson, L.

Tonge, B.

Tope, L.

Tunnicliffe, L. [Teller]

Tyler, L.

Uddin, B.

Wall of New Barnet, B.

Walmsley, B.

Walpole, L.

Warnock, B.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

Wheeler, B.

Whitaker, B.

Wigley, L.

Wilkins, B.

Wills, L.

Wood of Anfield, L.

Worthington, B.

Young of Norwood Green, L.

NOT CONTENTS

Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B. [Teller]

Arran, E.

Astor of Hever, L.

Attlee, E.

Bates, L.

Black of Brentwood, L.

Blair of Boughton, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Bottomley of Nettlestone, B.

Bowness, L.

Brabazon of Tara, L.

Bridgeman, V.

Brooke of Sutton Mandeville, L.

Brookeborough, V.

Brougham and Vaux, L.

Browning, B.

Burnett, L.

Buscombe, B.

Butler of Brockwell, L.

Butler-Sloss, B.

Byford, B.

Caithness, E.

Cathcart, E.

Cavendish of Furness, L.

Chadlington, L.

Chalker of Wallasey, B.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Courtown, E.

Craigavon, V.

Crickhowell, L.

Cumberlege, B.

De Mauley, L.

Deighton, L.

Dixon-Smith, L.

Dobbs, L.

Eaton, B.

Eccles of Moulton, B.

Eccles, V.

Eden of Winton, L.

Elton, L.

Empey, L.

Falkner of Margravine, B.

Faulks, L.

Fellowes of West Stafford, L.

Fink, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Framlingham, L.

Fraser of Carmyllie, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Gilbert, L.

Glenarthur, L.

Goodlad, L.

Goschen, V.

Grade of Yarmouth, L.

Green of Hurstpierpoint, L.

Greenway, L.

Hamilton of Epsom, L.

Hanham, B.

Harris of Peckham, L.

Henley, L.

Heyhoe Flint, B.

Higgins, L.

Hill of Oareford, L.

Home, E.

Howe, E.

Hunt of Wirral, L.

26 Mar 2013 : Column 1057

Hurd of Westwell, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jopling, L.

Kerr of Kinlochard, L.

Kilclooney, L.

Knight of Collingtree, B.

Kramer, B.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lee of Trafford, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Lloyd of Berwick, L.

Loomba, L.

Luke, L.

Mackay of Clashfern, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Manningham-Buller, B.

Mar and Kellie, E.

Martin of Springburn, L.

Mayhew of Twysden, L.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Naseby, L.

Nash, L.

Neville-Jones, B.

Newby, L. [Teller]

Newlove, B.

Nicholson of Winterbourne, B.

Noakes, B.

Northbrook, L.

Northover, B.

Norton of Louth, L.

O'Cathain, B.

Parminter, B.

Patten, L.

Perry of Southwark, B.

Popat, L.

Ramsay of Cartvale, B.

Randerson, B.

Rawlings, B.

Razzall, L.

Reid of Cardowan, L.

Renfrew of Kaimsthorn, L.

Ribeiro, L.

Ridley, V.

Roper, L.

Saatchi, L.

Sanderson of Bowden, L.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharples, B.

Shaw of Northstead, L.

Sheikh, L.

Shrewsbury, E.

Shutt of Greetland, L.

Skelmersdale, L.

Spicer, L.

Stedman-Scott, B.

Stephen, L.

Stoneham of Droxford, L.

Stowell of Beeston, B.

Taverne, L.

Taylor of Holbeach, L.

Trenchard, V.

Trimble, L.

Tugendhat, L.

Ullswater, V.

Vallance of Tummel, L.

Verma, B.

Waddington, L.

Wakeham, L.

Walker of Aldringham, L.

Walker of Gestingthorpe, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Warsi, B.

Wei, L.

Wheatcroft, B.

Wilcox, B.

Woolf, L.

Wright of Richmond, L.

Younger of Leckie, V.

9.32 pm

Amendment 6B, as an amendment to Commons Amendment 6, not moved.

Motion agreed.

Motion on Amendments 7 to 15

Moved by Lord Wallace of Tankerness

That this House do agree with the Commons in their Amendments 7 to 15.

7: Page 5, line 12, leave out “the Secretary of State” and insert “a person”

8: Page 5, line 15, after “section” insert “or proceedings for or about such a declaration”

9: Page 5, line 18, leave out “the Secretary of State” and insert “a person”

10: Page 5, line 19, leave out “(1)” and insert “(1A)(a)”

11: Page 5, line 19, leave out “Secretary of State’s” and insert “person’s”

12: Page 5, line 20, leave out “all of the parties” and insert “every other person entitled to make such an application in relation”

26 Mar 2013 : Column 1058

13: Page 5, line 22, leave out “Secretary of State” and insert “applicant”

14: Page 5, line 22, leave out from “inform” to first “of” in line 23 and insert “every other such person”

15: Page 5, line 32, at end insert—

““sensitive material” means material the disclosure of which would be damaging to the interests of national security.”

Motion agreed.

Motion on Amendment 16

Moved by Lord Wallace of Tankerness

That this House do agree with the Commons in their Amendment 16.

16: After Clause 6, insert the following new Clause—

“Review and revocation of declaration under section 6

(1) This section applies where a court seised of relevant civil proceedings has made a declaration under section 6.

(2) The court must keep the declaration under review, and may at any time revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings.

(3) The court must undertake a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed, and must revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings.

(4) The court may revoke a declaration under subsection (2) or (3)—

(a) on the application of—

(i) the Secretary of State (whether or not the Secretary of State is a party to the proceedings), or

(ii) any party to the proceedings, or

(b) of its own motion.

(5) In deciding for the purposes of subsection (2) or (3) whether a declaration continues to be in the interests of the fair and effective administration of justice in the proceedings, the court must consider all of the material that has been put before it in the course of the proceedings (and not just the material on which the decision to make the declaration was based).

(6) Rules of court must make provision—

(a) as to how a formal review is to be conducted under subsection (3),

(b) as to when the pre-trial disclosure exercise is to be considered to have been completed for the purposes of subsection (3).

(7) In relation to proceedings before the Court of Session—

(a) the reference in subsection (3) to the completion of the pre-trial disclosure exercise is a reference to the fixing of a hearing to determine the merits of the proceedings, and

(b) the reference in subsection (6)(b) to when the pre-trial disclosure exercise is to be considered to have been completed is a reference to what constitutes a hearing to determine the merits of the proceedings.”

Amendments 16A to 16C, as amendments to Commons Amendment 16, not moved.

Motion agreed.

Motion on Amendment 17

Moved by Lord Wallace of Tankerness

That this House do agree with the Commons in their Amendment 17.

26 Mar 2013 : Column 1059

17: Clause 10, page 7, line 31, leave out subsections (4) and (5) and insert—

“(4) The following proceedings are to be treated as section 6 proceedings for the purposes of sections 7 to 9, this section and sections (Reports on use of closed material procedure) to 11—

(a) proceedings on, or in relation to, an application for a declaration under section 6,

(b) proceedings on, or in relation to, a decision of the court to make a declaration under that section of its own motion,

(c) proceedings on, or in relation to, an application for a revocation under section (Review and revocation of declaration under section 6), and

(d) proceedings on, or in relation to, a decision of the court to make a revocation under that section of its own motion.

(5) In proceedings treated as section 6 proceedings by virtue of subsection (4), a relevant person, for the purposes of sections 7 to 9, this section and sections (Reports on use of closed material procedure) to 11, is a person who would be required to disclose sensitive material in the course of the proceedings.”

Motion agreed.

Motion on Amendment 18

Moved by Lord Wallace of Tankerness

That this House do agree with the Commons in their Amendment 18.

18: After Clause 10, insert the following new Clause—

“Reports on use of closed material procedure

(1) The Secretary of State must—

(a) prepare a report on the matters mentioned in subsection (2) for—

(i) the period of twelve months beginning with the day on which section 6 comes into force, and

(ii) every subsequent twelve month period, and

(b) lay a copy of each such report before Parliament.

(2) The matters are—

(a) the number of applications made during the reporting period—

(i) by the Secretary of State under section 6(1A)(a)(i) or (Review and revocation of declaration under section 6)(4)(a)(i), and

(ii) by persons other than the Secretary of State under section 6(1A)(a)(ii) or (Review and revocation of declaration under section 6)(4)(a)(ii),

(b) the number of declarations made by the court under section 6(1), and the number of revocations made by the court under section (Review and revocation of declaration under section 6)(2) or (3), during the reporting period—

(i) in response to applications made by the Secretary of State during the reporting period,

(ii) in response to applications made by the Secretary of State during previous reporting periods,

(iii) in response to applications made by persons other than the Secretary of State during the reporting period,

(iv) in response to applications made by persons other than the Secretary of State during previous reporting periods, and

(v) of the court’s own motion,

(c) the number of final judgments given in section 6 proceedings during the reporting period which are closed judgments, and

(d) the number of such judgments which are not closed judgments.

(3) The report may also include such other matters as the Secretary of State considers appropriate.

(4) The duty under subsection (1) in relation to the preparation and laying of a report must be carried out as soon as reasonably practicable after the end of the twelve month period to which the report relates.

26 Mar 2013 : Column 1060

(5) In this section—

“closed judgment” means a judgment that is not made available, or fully available, to the public,

“final judgment”, in relation to section 6 proceedings, means a final judgment to determine the proceedings.”

Lord Wallace of Tankerness: My Lords, for the convenience of the House, I will speak also to the other amendments in this group. The Government have listened to concerns expressed in this House and elsewhere about transparency, particularly around the new closed material proceedings provisions. I know that several Members of your Lordships’ House expressed frustration at the lack of information available about how many CMPs take place.

The Government have accepted that the unusual nature of CMPs means that there would be significant public and parliamentary interest in more information about how the provisions in this Bill will operate. A strong view was expressed in this House, although no amendments to the Bill were passed, that reporting and review arrangements would be valuable safeguards.

The Government have brought forward amendments that address these concerns. We decided to adopt the expert view of the Constitution Committee by providing for annual reporting to Parliament and for a review of the CMP provisions under this Bill to be conducted five years after Royal Assent. The Joint Committee on Human Rights also made similar recommendations.

Given the often lengthy nature of litigation, with cases often lasting more than a year and sometimes several years, we believe that the frequency of review under these provisions allows for regular but meaningful reporting and for a review to be informed by enough cases to provide for substantiated conclusions and reasoned recommendations where necessary.

An annual report is the most proportionate approach. We expect that the CMP provisions in the Bill will be used rarely. More frequent reports may contain too few data to be meaningful. Annual reports will not, however, be the only way in which facts relating to cases involving CMPs will be made public during the reporting period. The Government made an amendment when the Bill was last considered by this House to ensure that where an application is made under Clause 6(2), that fact must be reported to the other parties in proceedings; and there are already existing mechanisms by which the courts publish their open judgments and the media report on cases of interest to the public.

The reports will focus on the volume of cases and applications. The amendment lists the matters of key concern to be included in the annual report as: the number of applications for a CMP declaration and by whom the applications are made; the number of declarations and revocations made by the court; and the number of judgments published, both open and closed, with respect to the determination of Section 6 proceedings—this would include judgments made on the substantive trial and judgments made regarding the outcome of the application for a CMP declaration. The reporting arrangements will also cover “deemed” Section 6 proceedings or those treated as Section 6 proceedings.

26 Mar 2013 : Column 1061

In addition to an annual reporting requirement, the Government have introduced provisions for a comprehensive review of the operation of the CMP provisions in this Bill after five years, conducted by an independent figure and with a report made to Parliament. We expect such a review to take into account the views of special advocates, among others; to consider efficiency, trends and types of case; and to analyse the numbers provided in the annual reports to reflect on how CMPs are being used. The reviewer will have to take care not to comment on judicial decisions or on how the judge has run particular cases.

In line with most other legislation, this clause provides for the appointment of the reviewer by the Secretary of State. Amendment 19A in the name of my noble friend Lord Marks would require consultation first with the Lord Chief Justices and the Lord President of the Court of Session. We do not believe that such consultation is necessary for a reviewer or commissioner to be independent or to be perceived as being independent, as has been repeatedly shown by the independence displayed by Mr David Anderson QC and other independent reviewers and commissioners. David Anderson has been clear about his views on this Bill, for example, and has been influential in persuading the Government to change their position on a number of issues. Such appointments are now subject to a statutory code for public appointments to ensure that they are undertaken transparently and on merit. This should provide reassurance that the person with the right skills and background will be appointed.

It has also been suggested that a review after a shorter period of time would be better. My noble friend’s Amendment 19B would reduce this period from five to four years, which I note seeks to ensure that the sunsetting provision follows consideration of the reviewer’s report. I believe that given how long litigation can take and the small number of cases expected, five years is the right period for there to be enough evidence for a review meaningfully to draw upon.

Amendment 19C would require a further review every five years. In its report, the Constitution Committee said the House may wish to consider the Bill being independently reviewed five years after it comes into force. We have followed that recommendation. Any reviews should be focused where there is proper justification for them, and they should be proportionate.

We should remember that judges have full discretion over whether to grant a CMP, whether to revoke it at any point in a case, whether they agree with the Secretary of State’s assessment of national security damage, how material should be treated within the CMP, effective management of the case, whether a CMP should continue, and in deciding the outcome. There have also been some suggestions that the unusual nature of the CMP provisions means that a sunset clause would be appropriate. This would allow Parliament the opportunity to revisit the need for the provisions in the Bill once they had been operating for a while. The Joint Committee on Human Rights recommended such a provision but the Constitution Committee did not.

26 Mar 2013 : Column 1062

Amendment 19D in the name of my noble friend Lord Marks and Amendment 19E, tabled by the noble Lord, Lord Beecham, seek to introduce a sunset and renewal clause for the new CMP provisions, requiring renewal every five years. My noble friend’s amendment provides for a renewal order to follow completion of the reviewer’s report. His amendment makes it clear that the CMP provisions would cease to take effect except relating to proceedings where a declaration had already been made, thereby not interrupting ongoing cases.

I point out to noble Lords that the effect of this amendment would also be to disrupt the Norwich Pharmacal clauses in the Bill that are intended to bring clarity to the Norwich Pharmacal jurisdiction when sensitive information is involved and to provide reassurance to intelligence-sharing partners, a point that was made in the previous debate by the noble Lord, Lord Owen. Although such a clause would apply to the new CMP Clauses 6 to 10 of the Bill, it would also affect proceedings connected to Norwich Pharmacal, both those where the Secretary of State would need to apply for a CMP and the reviews of certificates issued by the Secretary of State under the Norwich Pharmacal clauses. These proceedings are deemed to be Section 6 proceedings because the case needs to be heard in a closed material procedure to ensure that the outcome of the proceedings is not prejudiced by having already publicly disclosed the very information with which the proceedings are concerned.

Such a sunset clause would undermine the purpose of the Bill and unnecessarily so. Both Houses have agreed that there is a gap in the law, that there are circumstances where a judge may decide that a CMP is preferable, that claimants’ cases must sometimes automatically fail without a CMP and that the judge should have a CMP in his toolkit. Given the wide discretion that we have given the judge about when the provisions should be used, I do not know why we would then want to remove CMPs from the judge’s toolkit.

As I have said, the Bill provides for the procedures of the court over which the judge has discretion and not the exercise of controls by the Executive. I reinforce the point, made in an earlier debate, that international partners have expressed concerns regarding the United Kingdom’s ability to protect sensitive information shared with the United Kingdom in cases where claimants are making allegations against the state and its defence rests on national security material. We risk further undermining the confidence that partners have to share information with us if they feel that we do not have secure processes in place to protect their material while defending government actions. We fear that a sunset clause would introduce unnecessary uncertainty.

As I indicated before, the Constitution Committee did not recommend a sunset clause. In its report it said that the House may wish to consider the Bill being independently reviewed, but not renewed, five years after it comes into force; or rather it did not recommend renewal. The Government have accepted the Constitution Committee’s recommendations, and believe that the report and review provisions are sufficient to provide

26 Mar 2013 : Column 1063

reassurance about how CMPs are used. I therefore beg to move that the House agrees with the Commons in their amendments.


Lord Marks of Henley-on-Thames: My Lords, I rise to speak to Amendments 19A to 19D in my name as amendments to Amendment 19, concerning review and renewal of the operation of CMPs in the legislation.

In the other place, as my noble and learned friend has explained, the Government conceded that the operation of Clauses 6 to 10 of the Bill should be the subject of a review after five years of the Bill’s operation. That is the effect of Amendment 19. As far as they go, the provisions of the amendment are welcome. They were introduced against the background of the recommendation of the Joint Committee on Human Rights in each of its two reports in November last year and February this year that the operation of Part 2 of the Bill should be subject to annual renewal. This amendment not only fails to meet that recommendation but, as it stands, has a number of significant weaknesses that make it frankly unfit for its purpose.

First, proposed new subsection (1) requires the Secretary of State on his or her own to appoint the reviewer. Yet one of the central complaints about the Bill, as my noble friend Lord Macdonald pointed out earlier, is that in practice it gives too much power to the state and to the Secretary of State in particular. The concerns focus not only on the degree to which the Bill sacrifices common-law principles of fairness and open justice but also on the relationship between the Secretary of State and the courts. That remains true notwithstanding the concessions, important though they are, that there have been on judicial discretion and equality of arms.

The Bill undoubtedly accords to the Secretary of State significant new power to influence how trials of some civil cases may be conducted. How the Secretary of State exercises that power and whether it is found in the light of experience to be either excessive or unnecessary will be fundamental questions for the reviewer to address.

9.45 pm

It is therefore entirely wrong that the person appointing the reviewer to report on the operation of those provisions is that very Secretary of State whose powers are to be reviewed. The arrangement proposed is akin to allowing one of the parties to choose the judge. My first amendment, Amendment 19A, addresses this issue by requiring the Secretary of State to consult the senior judges of the three jurisdictions before appointing the reviewer. That is consistent with the principle that for these provisions to command public confidence there must be judicial involvement in their implementation at every stage. There are those who would argue for a strong fetter, for a veto on the appointment. I say to them, first, that it would take a very brave Secretary of State to ignore the advice of the two Chief Justices and the Lord President and, secondly, that were my other amendments to be successful, it would be for Parliament to assess the suitability of the reviewer when considering whether to approve a renewal order, if he sought one. I hope that the Government will decide to accept this modest and obviously fair

26 Mar 2013 : Column 1064

amendment in spite of what my noble and learned friend has said, because it will enhance the confidence of the public in the review process that they have wisely introduced.

The second weakness in Commons Amendment 19 is that the Government propose only a single, one-off review after five years with the report to be laid before Parliament but without any power for Parliament to act upon it. These provisions, whether justified or not, represent, as we have heard, a serious departure from fundamental common-law principles of open justice and fairness. There is concern and uncertainty about the degree to which they are in fact required and about how they will work in practice, so it is essential that their continued existence and their operation in practice should be kept under regular and careful scrutiny and that that scrutiny should be scrutiny by Parliament. The Commons proposal comes nowhere near fulfilling that objective. The review is all very well, but what is its point if there is no requirement for anyone to act on it and no power for Parliament to respond? If a review concludes that CMPs in civil cases are now unnecessary, or that they are working injustice to the extent that they should be abolished, Parliament should be able to respond directly to that review. As it stands, this is a review without teeth or consequence.

My Amendments 19B to 19D are in line with the assurance sought by the Joint Committee on Human Rights in its letter to the right honourable Ken Clarke dated 18 March this year. In its drafting, it owes much to the Terrorism Prevention and Investigation Measures Act 2011. They need to be considered together. They would provide for a regular review of the operation of CMPs once every five years, with the Secretary of State given a power to make a renewal order following each review, but subject to the affirmative resolution procedure, so both Houses would have to approve a renewal order before it took effect. If no renewal order were made within 90 days of the reviewer’s report being laid before Parliament, the CMP provisions would cease to have effect, except for cases where a Section 6 declaration had already been made, so it would not affect existing cases. The first review would need to be after four years rather than five to ensure that a review and a vote on renewal, if renewal were sought by the Secretary of State, could take place in the next Parliament. In opening this debate, the Minister suggested that it was not appropriate for Sections 6 to 10 to lapse because CMPs are to be used for review of sensitive information certificates in relation to excluded Norwich Pharmacal material and those reviews under Clause 15(1).

I believe that for a lawyer of my noble and learned friend’s distinction it must be quite clear that it would be a simple matter of drafting, either in the Commons to my amendment or in a renewal order subsequently, to maintain the secrecy of proceedings under proposed Section 15(1) so that a review of a sensitive information certificate could be carried out in closed proceedings. I suggest that that does not affect the need for a review.

These proposals represent the minimum required to retain for Parliament a proper role in overseeing the operation of these uncertain CMP provisions after they have been brought into legislation.

26 Mar 2013 : Column 1065

Lord Butler of Brockwell: My Lords, I want to reinforce what the Minister has said about the prejudice which a sunset clause would have to the confidence which partners would have in us. I noticed that the noble Lord, Lord Marks, was modifying his proposals in his speech because he has recognised that.

Let us suppose that an ally is at this moment considering whether to pass confidences to the Government. If those confidences were held by the intelligence services they would be protected under the Bill. If they were held by another department, they could be protected only by a certificate passed by a Secretary of State. If at this moment the ally was considering whether to pass those confidences to this country and was uncertain whether in four or five years’ time there would be closed procedures under which that certificate could then be considered, it would be a matter of uncertainty whether those confidences would be protected in four or five years’ time. That would affect the willingness of allies to pass secrets to us now. It would, therefore, be very damaging if a sunset clause in the form proposed originally by the noble Lord, Lord Marks, supported by the Opposition, were to pass into law. I very much hope that the House will not support that proposal.

Lord Beecham: My Lords, I support the amendments tabled by the noble Lord, Lord Marks, and I am prepared to say at this stage that I will not be pressing my own amendment, which is on similar terms at least to the last amendment that the noble Lord has moved.

The noble Lord, Lord Butler, has adumbrated a case in which it would seem almost that the doctrine that no Parliament can bind its successor is somehow to be disregarded. Of course, it would be open to any subsequent Parliament to amend this law in any event. Any nation dealing with us will be aware of that. There is not, therefore, a great deal of force in what the noble Lord has been proposing as a justification for supporting the Government’s position on this matter.

The question arises: what is the point of a review? If a review is to take place—and the Government have given welcome acceptance to that concept—where does it lead? Apparently it would lead nowhere. The whole purpose of the review in these circumstances would be vitiated. There needs to be a review, given the nature of the change in our proceedings for us to establish a principle that there should be a renewal, and certainly on that basis I am prepared to support the noble Lord’s amendments.

Lord Wallace of Tankerness: My Lords, this has been a relatively short debate, but nevertheless important points have been made by my noble friend Lord Marks and the noble Lords, Lord Butler and Lord Beecham.

The first point I wish to make with regard to the first amendment in the name of my noble friend is, as I indicated in my opening remarks, that a number of public appointments, not least the appointment of Sir David Anderson, have been made by the Secretary of State without the consultation that my noble friend is suggesting in his amendment. I know that it is

26 Mar 2013 : Column 1066

furthest from my noble friend’s mind to suggest this, but I am sure we would not want a situation where perhaps the appointment of some independent reviewers was questioned because they had not had the same statutory consultation requirements as have been proposed here.

I do not think anyone can deny that the role that Mr David Anderson plays is a very sensitive one. The independent reviewer of terrorism legislation reviews quite significantly the actions of the Executive. It is in the interests, too, of the Secretary of State that the person appointed as the reviewer is credible. I do not think that the recent appointment by the Home Secretary of the Biometrics Commissioner—or indeed of Mr Anderson—has given rise to any concerns. I would caution against fixing a problem that does not exist, because you might inadvertently create another problem by perhaps casting some doubt on the independence of those who have been appointed under the present regime. The Secretary of State should have the discretion, in a highly sensitive national security context, to ensure the appointment of an individual who does not pose any risk. I am sure that would be agreed across the House.

I listened to what my noble friend said and, as the noble Lord, Lord Butler, pointed out, he indicated that he was perhaps shifting—that is not a criticism at all—on the position of the renewal, given the deemed Section 6 proceedings as far as Norwich Pharmacal is concerned. The noble Lord, Lord Butler, makes an important point with regard to the confidence in which other countries share information with us. The fact that there would be regular potential for renewals puts it in a different category from that raised by the noble Lord, Lord Beecham, and it could raise a problem. In one of our earliest debates, the noble Lord, Lord Butler, indicated from a visit to America that when we discussed information perhaps being withheld, it was not fanciful; it was something that he actually encountered in his role as a member of the ISC.

I simply say to my noble friend and to the noble Lord, Lord Beecham, who ask what is the point of a review if nothing could happen, that the answer lies in what the noble Lord, Lord Beecham, himself said. No one is suggesting that this Parliament is binding its successors by this. I remind the House that it is not just the actions of the Executive and the Secretary of State; it is the whole system that we are setting up, which involves the courts. If a review proved that closed material proceedings were not working, manifest injustice was following on from them and they were not actually doing what they were set up to do, of course it would be possible for a future Parliament, through primary legislation, to repeal the legislation if that system is not working. Indeed, it may not go as far as repeal. It may be that a review would point out particular things that perhaps needed amendment, falling far short of a repeal. So a review could have a proper purpose that does not necessarily require a renewal order to follow on from it. In these circumstances, I invite the House to support and approve the amendments that have been brought from another place and I invite my noble friend not to move his amendment.

Motion agreed.

26 Mar 2013 : Column 1067

Motion on Amendment 19

Moved by Lord Wallace of Tankerness

That this House do agree with the Commons in their Amendment 19.

19: Insert the following new Clause—

“Review of sections 6 to 10

(1) The Secretary of State must appoint a person to review the operation of sections 6 to 10 (the “reviewer”).

(2) The reviewer must carry out a review of the operation of sections 6 to 10 in respect of the period of five years beginning with the day on which section 6 comes into force.

(3) The review must be completed as soon as reasonably practicable after the end of the period to which the review relates.

(4) As soon as reasonably practicable after completing a review under this section, the reviewer must send to the Secretary of State a report on its outcome.

(5) On receiving a report under subsection (4), the Secretary of State must lay a copy of it before Parliament.

(6) Before laying a copy of a report before Parliament under subsection (5), the Secretary of State may, after consulting the reviewer, exclude from the copy any part of the report that would, in the opinion of the Secretary of State, be damaging to the interests of national security if it were included in the copy laid before Parliament.

(7) The Secretary of State may pay to the reviewer—

(a) expenses incurred by the reviewer in carrying out functions under this section, and

(b) such allowances as the Secretary of State determines.”

Amendment 19A, as an amendment to Commons Amendment 19, not moved.

Amendment 19B (as an amendment to Commons Amendment 19)

Moved by Lord Marks of Henley-on-Thames

19B: Line 6, leave out “five” and insert “four”

Lord Marks of Henley-on-Thames: I have not moved Amendment 19A, but Amendments 19B to 19D, as a suite, on the principle of renewal, are extremely important. In those circumstances, I do not accept the argument put by the noble Lord, Lord Butler. I cannot believe that it is beyond the wit of man to produce, in this legislation, a very clear signal that a review of certificates on Norwich Pharmacal proceedings can proceed without impairing the renewal amendment. In those circumstances, I wish to test the opinion of the House.

10 pm

Division on Amendment 19B

Contents 65; Not-Contents 141.

Amendment 19B disagreed.

Division No.  3

CONTENTS

Allan of Hallam, L.

Alli, L.

Barker, B.

Bassam of Brighton, L.

Beecham, L.

Bilston, L.

Bonham-Carter of Yarnbury, B.

Brinton, B.

Brookman, L.

Carter of Coles, L.

Cotter, L.

Doocey, B. [Teller]

26 Mar 2013 : Column 1068

Elystan-Morgan, L.

Evans of Parkside, L.

Gordon of Strathblane, L.

Grantchester, L.

Greaves, L.

Grenfell, L.

Hamwee, B.

Harris of Richmond, B.

Harrison, L.

Haworth, L.

Hollis of Heigham, B.

Hunt of Kings Heath, L.

Hussain, L.

Hylton, L.

Jones, L.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kirkwood of Kirkhope, L.

Kramer, B.

Layard, L.

Lea of Crondall, L.

McAvoy, L.

McDonagh, B.

Macdonald of River Glaven, L.

McFall of Alcluith, L.

MacKenzie of Culkein, L.

Maclennan of Rogart, L.

Marks of Henley-on-Thames, L. [Teller]

Miller of Chilthorne Domer, B.

Morris of Handsworth, L.

Razzall, L.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L.

Royall of Blaisdon, B.

Sawyer, L.

Scott of Needham Market, B.

Shutt of Greetland, L.

Smith of Basildon, B.

Soley, L.

Steel of Aikwood, L.

Stephen, L.

Stevenson of Balmacara, L.

Strasburger, L.

Taylor of Goss Moor, L.

Teverson, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

Tonge, B.

Tope, L.

Tyler, L.

Walmsley, B.

Walpole, L.

Warwick of Undercliffe, B.

NOT CONTENTS

Ahmad of Wimbledon, L.

Alderdice, L.

Anelay of St Johns, B. [Teller]

Arran, E.

Astor of Hever, L.

Attlee, E.

Bates, L.

Bew, L.

Black of Brentwood, L.

Blencathra, L.

Bowness, L.

Brabazon of Tara, L.

Bridgeman, V.

Brooke of Sutton Mandeville, L.

Brookeborough, V.

Brougham and Vaux, L.

Brown of Eaton-under-Heywood, L.

Browning, B.

Burnett, L.

Butler of Brockwell, L.

Byford, B.

Caithness, E.

Cathcart, E.

Cavendish of Furness, L.

Chalker of Wallasey, B.

Colwyn, L.

Cope of Berkeley, L.

Courtown, E.

Craigavon, V.

Cumberlege, B.

De Mauley, L.

Deighton, L.

Dixon-Smith, L.

Dobbs, L.

Eaton, B.

Eccles of Moulton, B.

Eccles, V.

Eden of Winton, L.

Elton, L.

Empey, L.

Falkner of Margravine, B.

Fellowes of West Stafford, L.

Fink, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Framlingham, L.

Fraser of Carmyllie, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Glenarthur, L.

Goodlad, L.

Goschen, V.

Grade of Yarmouth, L.

Green of Hurstpierpoint, L.

Hamilton of Epsom, L.

Hanham, B.

Harris of Peckham, L.

Higgins, L.

Hill of Oareford, L.

Home, E.

Howe of Aberavon, L.

Howe of Idlicote, B.

Howe, E.

Hunt of Wirral, L.

Inglewood, L.

Jenkin of Roding, L.

Jopling, L.

Kerr of Kinlochard, L.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lee of Trafford, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Linklater of Butterstone, B.

Loomba, L.

Luke, L.

Mackay of Clashfern, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Manningham-Buller, B.

Mayhew of Twysden, L.

Montrose, D.

Morris of Bolton, B.

26 Mar 2013 : Column 1069

Nash, L.

Neville-Jones, B.

Newby, L. [Teller]

Newlove, B.

Nicholson of Winterbourne, B.

Noakes, B.

Northbrook, L.

Northover, B.

Norton of Louth, L.

O'Cathain, B.

Parminter, B.

Perry of Southwark, B.

Phillips of Sudbury, L.

Popat, L.

Randerson, B.

Rawlings, B.

Renfrew of Kaimsthorn, L.

Ribeiro, L.

Ridley, V.

Roper, L.

Saatchi, L.

Sanderson of Bowden, L.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharples, B.

Sheikh, L.

Shrewsbury, E.

Skelmersdale, L.

Spicer, L.

Stedman-Scott, B.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strathclyde, L.

Taverne, L.

Taylor of Holbeach, L.

Trimble, L.

Ullswater, V.

Verma, B.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Warsi, B.

Wei, L.

Wheatcroft, B.

Wilcox, B.

Younger of Leckie, V.

10.11 pm

Amendments 19C to 19E, as amendments to Commons Amendment 19, not moved.

Motion agreed.

Motion on Amendments 20 to 24

Moved by Lord Wallace of Tankerness

That this House do agree with the Commons in their Amendments 20 to 24.

20: Clause 11, page 7, line 38, leave out “10” and insert “(Review of sections 6 to 10)”

21: Page 8, line 10, leave out “(4)” and insert “(1G)”

22: Page 8, line 14, at end insert—

““sensitive material” has the meaning given by section 6(9),”

23: Page 8, line 18, leave out “10” and insert “(Review of sections 6 to 10)”

24: Clause 15, page 12, line 31, leave out “and 10” and insert “, 10 and (Review of sections 6 to 10)”

Motion agreed.

Motion on Amendment 25

Moved by Lord Wallace of Tankerness

That this House do agree with the Commons in their Amendment 25.

25: Clause 17, page 14, line 1, leave out subsection (8)

Lord Wallace of Tankerness: My Lords, I beg to move that this House do agree with the Commons in their Amendment 25. This is a minor technical amendment. It removes the privilege amendment which was inserted into the Bill at Third Reading in this House to recognise the privilege of the other place to control any charges on the people or on public funds. The removal of this amendment at this point is standard procedure.

Motion agreed.

26 Mar 2013 : Column 1070

Motion on Amendments 26 to 45

Moved by Lord Wallace of Tankerness

That this House do agree with the Commons in their Amendments 26 to 45.

26: Schedule 1, page 16, line 3, at end insert—

“(6) The ISC may take evidence on oath, and for that purpose may administer oaths.”

27: Page 16, line 3, at end insert—

“Funding and other resources

A Minister of the Crown—

(a) may make payments to either House of Parliament in respect of any expenditure incurred, or to be incurred, by either House in relation to the ISC,

(b) may provide staff, accommodation or other resources to either House of Parliament for the purposes of the ISC,

(c) may make payments, or provide staff, accommodation or other resources, to the ISC, or

(d) may otherwise make payments, or provide staff, accommodation or other resources, to any person for the purposes of the ISC.”

28: Page 16, line 5, at beginning insert—

“( ) This paragraph applies to information requested by the ISC in the exercise of its functions that—

(a) does not relate to any particular operational matter, or

(b) relates to a particular operational matter that the ISC is considering under section 2(3)(a) or (b).”

29: Page 16, line 7, leave out from “ISC” to first “information” in line 8 and insert “to disclose the”

30: Page 16, line 15, leave out “in the exercise of its functions”

31: Page 16, line 16, after “disclose” insert “the”

32: Page 16, line 23, leave out “Minister of the Crown” and insert “Secretary of State”

33: Page 16, line 24, leave out “A Minister of the Crown” and insert “The Secretary of State”

34: Page 16, line 25, leave out “Minister” and insert “Secretary of State”

35: Page 16, line 31, leave out “Minister” and insert “Secretary of State”

36: Page 16, line 33, leave out “Minister” and insert “Secretary of State”

37: Page 16, line 36, leave out “Minister” and insert “Secretary of State”

38: Page 17, line 20, at end insert—

“Publication of information received in private

5 (1) This paragraph applies to information received by the ISC in private in connection with the exercise of its functions.

(2) The ISC—

(a) may only publish the information by way of a report under section 3, and

(b) must not otherwise disclose the information to any person if the ISC considers that there is a risk that the person will publish it.

(3) The restrictions on publication and disclosure of information in sub-paragraph (2) do not apply if—

(a) the ISC and the Prime Minister are satisfied that publication or disclosure would not be prejudicial to the continued discharge of the functions of the Security Service, the Secret Intelligence Service, the Government Communications Headquarters or any person carrying out activities falling within section 2(2),

(b) publication or disclosure is necessary for the ISC to comply with any enactment or rule of law, or

26 Mar 2013 : Column 1071

(c) the information has on an earlier occasion been disclosed to the public, in circumstances which do not contravene—

(i) sub-paragraph (2), or

(ii) any other enactment or rule of law prohibiting or restricting the disclosure of information.”

39: Page 17, line 20, at end insert—

“Protection for witnesses

6 (1) Evidence given by a person who is a witness before the ISC may not be used in any civil or disciplinary proceedings, unless the evidence was given in bad faith.

(2) Evidence given by a person who is a witness before the ISC may not be used against the person in any criminal proceedings, unless the evidence was given in bad faith.”

40: Schedule 2, page 17, line 30, at end insert—

“Data Protection Act 1998 (c. 29)

In section 63A of the Data Protection Act 1998 (application to Parliament)—

(a) in subsection (2), after “Commons,” insert “other than where they are determined by or on behalf of the Intelligence and Security Committee of Parliament,”, and

(b) in subsection (3), after “Lords,” insert “other than where they are determined by or on behalf of the Intelligence and Security Committee of Parliament,”.”

41: Page 17, line 36, at end insert “, and

(b) after “Committee” insert “of Parliament”.”

26 Mar 2013 : Column 1072

42: Page 18, line 4, at end insert—

“Freedom of Information Act 2000 (c. 36)

(1) The Freedom of Information Act 2000 is amended as follows.

(2) In section 23 (information supplied by, or relating to, bodies dealing with security matters), in subsection (3), at the end insert—

“(o) the Intelligence and Security Committee of Parliament.”

(3) In Part 1 of Schedule 1 (Public Authorities; General)—

(a) in paragraph 2, after paragraph (d) insert—

“(e) information held by the Intelligence and Security Committee of Parliament.”, and

(b) in paragraph 3, after paragraph (d) insert—

“(e) information held by the Intelligence and Security Committee of Parliament.””

43: Page 18, line 10, at end insert “, and

(b) after “Committee” insert “of Parliament”.”

44: Page 19, line 31, leave out “7(2)” and insert “7(1)”

45: Schedule 3, page 21, line 22, after “Committee” insert “of Parliament”

Motion agreed.

House adjourned at 10.13 pm.