Justice and Security Bill [HL] Committee Stage Report

The first part of the Justice and Security Bill is aimed at modernising and strengthening the oversight of the intelligence and security services. It would reform the Intelligence and Security Committee (ISC), making it a statutory committee of Parliament. The second part of the Bill would introduce controversial statutory provisions to allow the civil courts to use ‘closed material procedures’ to hear sensitive evidence in cases that raised national security concerns. It would preclude the courts from ordering the disclosure of sensitive information in certain circumstances. Opponents of the second part of the Bill (which is entitled “disclosure of sensitive material”) often dub the plans “secret justice” and argue that closed material procedures (CMPs) are unfair and unjustified.

The proposals contained in the Bill stem from an earlier consultation and Green Paper, also entitled Justice and Security. The Green Paper indicated that over recent years, the security and intelligence agencies had been affected by an increasing number of court cases, such as civil damages claims filed by former Guantanamo detainees, appeals over immigration decisions and judicial reviews of Government decisions in the national security context. The Government has made clear that it sees the need for a balance to be struck between the “transparency that accountability normally entails and the secrecy that security demands”. The Government acknowledged the need to ensure that the security and intelligence agencies are subject to effective judicial and non-judicial scrutiny in order that the public has confidence that they are working lawfully, effectively and efficiently. When introducing the Bill, the Government argued that the introduction of CMPs in civil cases would allow courts to consider all material relating to a case, even where national security prevented that material from being made public, to ensure that claims were properly investigated and scrutinised by the courts.

It is worth noting that CMPs have existed in a number of contexts for some years; however, in a recent court case, the Supreme Court determined that a court was not entitled to adopt a CMP in an ordinary civil claim for damages (and that it was for Parliament to legislate to make CMPs available in such proceedings, if it wished to do so).

Second Reading of the Bill in the House of Commons took place on 18 December 2012 and the Bill had its Committee Stage between 29 January and 7 February 2013. At Committee stage, certain amendments which had been introduced by the House of Lords (namely additional safeguards relating to the use of CMPs which had been recommended by the Joint Committee on Human Rights) were overturned by the Government. The Government has claimed that its amendments to the Bill meet the same concerns as the amendments made in the House of Lords. The Joint Committee on Human Rights is expected to issue a report on the Government amendments prior to Report stage. Amendments were also made to the provisions relating to the ISC. In particular, under Clause 1 and Schedule 1 it was renamed the ‘Intelligence and Security Committee of Parliament’ and further amendments were made relating to witness evidence under oath, the publication of information received in private and protection for witnesses. A number of human rights NGOs and others are campaigning to have the CMP measures contained in Part 2 of the Bill removed in their entirety. Lord Pannick QC who had proposed the Lords amendments was quoted by The Times as being “very concerned” that these amendments were removed.