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DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
JUSTICE AND SECURITY BILL
Memorandum by the Cabinet Office, Home Office and Ministry of Justice
Introduction and summary of the Bill
1. This Memorandum describes the provisions in the Justice and Security Bill which
confer powers to make delegated legislation, and explains why these powers have
been taken and the nature of, and reason for, the procedure selected for exercising
those powers. The Memorandum also provides a similar description and explanation
of the clauses in the Bill which confer a power to make a memorandum of
understanding and a direction, each providing further detail of arrangements under
new statutory schemes. Although these are not delegated legislative powers, the
departments thought it would be useful to provide this information.
2. This Bill follows the Government’s consultation on its Justice and Security Green
Paper. Part 1 of the Bill deals with oversight of the security and intelligence services.
It replaces the existing Intelligence and Security Committee under the Intelligence
Services Act 1994 with a new Intelligence and Security Committee. Like the old
committee, the new one will be made up of Parliamentarians from both Houses, and
will have the function of examining the expenditure, administration and policy of the
Security
Service,
the
Secret
Intelligence
Service
and
the
Government
Communications Headquarters (the “intelligence services”). However, unlike the old
statutory regime, the Bill allows committee members to be appointed by Parliament,
from persons nominated by the Prime Minister. The new regime also provides in
statute that the Prime Minister and the committee may agree for the committee to
oversee intelligence and security activities of other parts of the UK government and to
oversee (on a retrospective basis) certain operational matters of significant national
interest.
3. Part 1 also increases the statutory oversight remit of the Intelligence Services
Commissioner. It extends the Commissioner’s statutory role to include oversight of
the exercise by the intelligence services and their heads of almost any aspect of their
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functions that is specified by the Prime Minister. It will also extend oversight in
relation to the intelligence activities of the Ministry of Defence and Her Majesty’s
forces.
4. Part 2 establishes a general “closed material procedure” (“CMP”) regime for civil
proceedings in the High Court, Court of Appeal and Court of Session. Under that
new regime, the Secretary of State may, after first considering whether a PII
application should be made, apply to the court for a declaration that a “closed material
application” may be made in the proceedings. The court must make such a declaration
if it considers that a party would be required to disclose material during the
proceedings which should not be disclosed in the interests of national security. The
effect of the declaration is that the party holding the sensitive material may apply for
permission not to disclose it except to the court, the Secretary of State (if a separate
party to the proceedings), and any appointed special advocates. Special advocates
may be appointed to represent the interests of the other parties, and the court or
tribunal may require the applicant to provide the other parties with a summary of the
material. If the permission is not given but the applicant nonetheless chooses not to
disclose the material, the court or tribunal may order the applicant to make various
concessions in the proceedings.
5. Part 2 also contains provision extending the existing closed material procedure under
the Special Immigration Appeals Commission Act 1997 to cover reviews of certain
cases where the Secretary of State has decided to exclude a non-EEA national from
the UK or to refuse a certificate of naturalisation under section 6 of the British
Nationality Act or an application of a kind mentioned in section 41A of that Act, in
reliance on information which the Secretary of State considers should not be made
public in the interests of national security, international relations or otherwise in the
public interest. The Bill gives the person concerned a right to apply to the Special
Immigration Appeals Commission for the decision to be set aside. The Commission
will review the decision on judicial review principles, and the existing closed material
procedure set out in Special Immigration Appeals Commission Act 1997 will apply to
any such review.
6. Finally, Part 2 of the Bill also restricts the availability of relief in cases where a
person has, or may have suffered “wrongdoing”, but needs information from a third
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party in order to obtain redress or rely on a defence in connection with that
wrongdoing. This is known as Norwich Pharmacal relief. The Bill restricts the
granting of such relief, made under the residual disclosure jurisdiction of the court, in
cases where the information sought is sensitive. Sensitive information means, broadly,
information which relates to, has come from or is held by the intelligence services or
whose disclosure the Secretary of State has certified would damage the interests of
national security or international relations.
Oversight of intelligence and security activities
Clause 2: Provision to agree the precise extent of the remit of the Intelligence and
Security Committee (ISC)
Power conferred on:
Prime Minister and ISC jointly
Power exercised by:
Memorandum of understanding
Parliamentary Procedure:
None
7. Clause 2 allows the Prime Minister to conclude a memorandum of understanding with
the ISC. The memorandum of understanding only affects the ISC’s remit within
limited parameters (described below).
8. Clause 1 of the Bill would replace the existing ISC (created by the Intelligence
Services Act 1994) with a new ISC, whose members are appointed by the House of
Commons and House of Lords, rather than by the Prime Minister, as currently. Like
its predecessor, the ISC would be comprised of Parliamentarians. The remit of the
new ISC is intended to be at least as broad as its predecessor. It would be able to
report directly to Parliament, rather than just to the Prime Minister.
9. The new ISC, like its predecessor, has the function of examining the expenditure,
administration and policy of the intelligence services.
10. In the past, the ISC has, with the agreement of previous and current governments,
taken evidence from bodies beyond the intelligence services which are a part of the
wider intelligence community within government. These include certain activities
within the Ministry of Defence (MOD), the Office for Security and CounterTerrorism in the Home Office and the central government intelligence machinery in
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the Cabinet Office (including the Joint Intelligence Organisation). In its annual
reports, the ISC has made recommendations relating to those bodies.
11. In practice also, in some of its previous reports and inquiries, the existing ISC has
undertaken work in relation to operational matters and has had some access to past
operational material. The clearest example of this was the ISC’s report into the 7 July
2005 terrorist attacks.
12. So far as the proposed new ISC is concerned, the Bill formalises these wider aspects
of its oversight role.
13. Clause 2(1) provides that the ISC may examine or otherwise oversee the expenditure,
administration, policy and operations of the intelligence services. Clause 2(2)
provides that the ISC may examine or otherwise oversee such activities of the
Government in relation to intelligence or security matters (other than those of the
intelligence services) as are set out in a memorandum of understanding. Clause 2(3)
provides that the ISC may consider any particular operational matter providing that
both the ISC and the Prime Minister are satisfied:
a. it is not part of any ongoing operation;
b. it is a matter of significant national interest; and
c. the consideration of that matter is in accordance with the memorandum of
understanding.
14. The memorandum of understanding must be agreed between the Prime Minister and
the ISC and can be altered or replaced at any time by agreement. It is intended that the
first memorandum of understanding will be agreed immediately on the coming into
force of the relevant provisions. While the ISC itself is dissolved on a dissolution of
Parliament, the memorandum of understanding in place with the ISC in the preceding
Parliament will continue to govern the work of the ISC in a new Parliament, unless or
until a new memorandum of understanding is agreed with the Prime Minister (see
paragraph 1(7) of Schedule 1 to the Bill).
15. As is usual for a memorandum of understanding, there is no Parliamentary approval
procedure. While the memorandum of understanding itself will be an unclassified
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document, which will be published and laid before Parliament, its precise terms are
very likely to be shaped by matters which are sensitive in terms of national security
and which can not therefore be made public. In these circumstances, it is particularly
appropriate that the memorandum of understanding can be concluded without the
need for Parliamentary approval; and, of course, the terms of the memorandum of
understanding must be agreed with the ISC, who are all Parliamentarians.
16. It is appropriate to use a memorandum of understanding to set out the precise remit of
the ISC in relation to bodies other than the intelligence services and in relation to
operational matters. The memorandum of understanding can make provision at a
level of detail which it is not appropriate to include in primary legislation, and may be
amended and kept up to date more easily and flexibly than primary or subordinate
legislation in response to changing operational demands.
17. As regards the bodies subject to the ISC’s oversight, detailed provisions may be
necessary to cover, in particular, the various intelligence or security functions carried
out under the authority of the MOD. There may be a need for flexibility because
operational changes within the MOD, and machinery of Government changes more
generally, are likely to mean that particular intelligence or security functions may be
performed by different bodies over time (for example, there may be a reorganisation
of MOD intelligence functions in light of the Levene Report1). In addition, there is a
need for flexibility to avoid overlap in the responsibilities of the ISC and relevant
departmental select committees. The intention is that substantively all of central
Government’s intelligence and security functions, including the MOD’s defence
intelligence functions, will be subject to ISC oversight.
18. As regards the ISC’s oversight of particular operations, as well as being retrospective
and focused on matters of significant national interest, this must not:
a. interfere with the statutory accountability of the intelligence services to their
Ministers (s. 1(1) of the Security Services Act 1989 and ss. 1(1) and 3(1) of
the Intelligence Services Act 1994);
b. overlap with the roles of other independent oversight bodies; or
“Defence Reform: An independent report into the structure and management of the Ministry
of Defence” (June 2011)
1
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c. lessen the effectiveness of the intelligence services and other intelligence and
security bodies or place any undue resource burden upon them.
A clear understanding between the Government and the ISC as to how the ISC can
most effectively oversee operational matters, without compromising these
imperatives, is best achieved in a flexible instrument agreed between them.
19. The intention is that the matters addressed in the memorandum of understanding will
include:
(a) the factors to be taken into account in deciding whether a particular operational
matter which the ISC might wish to consider is ongoing and/or of significant
national interest;
(b) a description of the arrangements by which the ISC will request, be provided with,
and hold information, including the circumstances in which the ISC will be able to
access primary source materials;
(c) a description of the role of investigative staff in the ISC’s work; and
(d) a description of the process for producing an ISC report.
Clause 5: Provision to confer additional functions on the Intelligence Services
Commissioner
Power conferred on:
Prime Minister
Power exercised by:
Direction
Parliamentary Procedure:
None
20. Clause 5 of the Bill confers a power on the Prime Minister to direct the Intelligence
Services Commissioner to keep certain functions of the intelligence services, the
MOD and Her Majesty’s forces under review.
21. The Intelligence Services Commissioner is one of three Commissioners that, along
with the Investigatory Powers Tribunal, provide independent oversight of the use of
investigatory techniques under the Regulation of Investigatory Powers Act 2000
(“RIPA”). In particular, they ensure that the exercise of investigatory powers by
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public authorities is subject to adequate and effective safeguards against abuse for the
purposes of article 8(2) of the ECHR.
22. The Intelligence Services Commissioner is appointed by the Prime Minister under
section 59(1) RIPA. He must have held ‘high judicial office’.
Section 59 RIPA
23. RIPA confers powers and imposes obligations on particular bodies including the
intelligence services, the Ministry of Defence and Her Majesty’s forces.
These
powers and obligations relate to the use of the investigatory techniques that are
covered by RIPA. Under section 59(2)(c) and (d) of RIPA the Intelligence Services
Commissioner must keep the exercise of those powers and duties under review.
24. The Intelligence Services Commissioner also has statutory functions to keep under
review the exercise of the relevant powers and duties of the Secretary of State or
Scottish Ministers and to keep under review the adequacy of arrangements to
safeguard particular information obtained under RIPA.
25. In addition to these statutory functions the Intelligence Services Commissioner has
occasionally agreed, at the request of the Prime Minister, to take on additional duties
outside that remit. Clause 5 of the Bill will enable these additional duties to be put on
to a statutory footing. It will also allow the functions of the Intelligence Services
Commissioner to be extended in the future.
Clause 5 (new section 59A RIPA)
26. Clause 5 inserts a new section 59A into RIPA. Section 59A(1) provides that the
Prime Minister may direct the Intelligence Services Commissioner to keep under
review the carrying out of functions by particular bodies. These are –
(i) an intelligence service and the head of an intelligence service, and
(ii) any part of Her Majesty’s forces, or of the Ministry of Defence, so far as
engaging in intelligence activities.
27. However, this power of direction does not apply in relation to anything that is already
required to be kept under review by the Intelligence Services Commissioner under
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section 59 or by the Interception of Communications Commissioner. The Prime
Minister may give a direction at the request of the Intelligence Services
Commissioner or otherwise (section 59A(3)).
28. The power of direction enables the Prime Minister to increase the functions of the
Intelligence Services Commissioner and to ensure that the work of an intelligence
service and other bodies who are carrying out intelligence work is subject to the
appropriate levels of scrutiny. It is appropriate to achieve this by a power of direction
because this enables the Prime Minister to respond quickly and flexibly to developing
situations and to requests from the Intelligence Services Commissioner for additional
functions. The additional functions are intended to cover specific aspects of the
functions of an intelligence service or a body carrying out intelligence work which
may change over time and may be in response to a particular situation. It is not
possible to provide an exhaustive list of the additional functions for inclusion in
primary legislation and this level of detail is not appropriate for primary legislation.
However, the provision makes clear in subsection (4) that directions may include, for
example, directions to keep the implementation or effectiveness of particular policies
under review.
29. An example of a recent additional oversight function that the Intelligence Service
Commissioner has agreed to is monitoring compliance by the intelligence services
and the Ministry of Defence with “Consolidated Guidance to the Intelligence Officers
and Service Personnel on the Detention and Interviewing of Detainees Overseas, and
on the Passing and Receipt of Intelligence Relating to Detainees”. It is anticipated
that the power of direction will be used to cover this and similar situations.
30. A direction under section 59A must be published except where publication would be
contrary to the public interest or prejudicial to –
(a) national security,
(b) the prevention or detection of serious crime,
(c) the economic well-being of the United Kingdom, or
(d) the continued discharge of the functions of any public authority whose activities
are subject to review by the Intelligence Services Commissioner.
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31. The intelligence services are already subject to a robust oversight regime which
includes oversight of their functions under RIPA by the Intelligence Services
Commissioner
and,
where
relevant,
the
Interception
of
Communications
Commissioner. The Ministry of Defence and Her Majesty’s forces are also subject to
oversight by those Commissioners where relevant. All those who are using the
authorisation regimes set out in RIPA must already comply with the legislative
provisions and the statutory Codes of Practice, which are subject to parliamentary
approval. The power of direction will be used to further enhance those safeguards by
identifying specific additional functions that are appropriate for oversight by the
Intelligence Services Commissioner. It will not detract from the existing oversight
regime or alter the nature of the safeguards that have already been approved by
Parliament. It is therefore appropriate for the power of direction to be exercised
without additional parliamentary approval. Those directions will also be published
unless that would be contrary to the public interest or prejudicial to one of the matters
set out above. This ensures increased transparency of the functions of the Intelligence
Services Commissioner and of the oversight of the intelligence services.
32. An example of a direction under section 59A will be produced and published
alongside the Bill. If the Bill successfully passes through Parliament it is intended
that this direction will be made to put the Intelligence Services Commissioner’s role
in monitoring compliance with the detainee guidance referred to in paragraph 29
above on a statutory footing.
Closed material proceedings
33. Clauses 6 to 11 of the Bill will introduce a statutory mechanism for proceedings in the
High Court, Court of Appeal and Court of Session to be heard using a closed material
procedure (“CMP”). A CMP is a procedure which incorporates the following
elements:
(a) A party to the court proceedings is in possession of relevant material which, if
disclosed openly, even if only to another party in the litigation or to that
party’s legal representatives, would risk damaging the interests of national
security. Such a party will nearly always be a Government body but it is
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possible that a party in private litigation might fall within this category if it
holds material originating from the Government;
(b) That party wishes to rely upon such material in support or defence of its case
or alternatively, is required under the particular rules of disclosure applying to
the proceedings to disclose such material to another party to the litigation;
(c) The party in possession of the sensitive material can adduce and make
submissions on that material to the court in the absence of any person,
including the other parties in litigation and their legal representatives. This
also includes the press and general public;
(d) The proceedings can take place without the excluded party in litigation being
given particulars of the sensitive material disclosed to the court;
(e) The court can nevertheless order that the excluded party in litigation is
provided with a summary of any evidence taken in his absence provided that
this does not damage the interests of national security (although this is subject
to the requirements of Article 6 of the European Convention on Human
Rights);
(f) A special advocate may be appointed to represent the interests of the party
who is (together with his legal representatives) excluded from the closed part
of the proceedings;
(g) During any part of the proceedings where sensitive evidence is not at issue, the
proceedings will be heard in the normal way with the other party in litigation
and his legal representatives present;
(h) The court using a CMP, when exercising its functions, is under a duty to
secure that information is not disclosed contrary to the interests of national
security, subject to the requirements of article 6 of the ECHR.
34. These clauses follow previous statutory models for CMPs, the most recent example
being in the Terrorism Prevention and Investigation Measures Act 2011 and
associated rules found in Part 80 of the Civil Procedure Rules.
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Clauses 6, 7 and 10: Power to make Rules of Court for regulating the proceedings
relating to CMPs
Power conferred on:
(a) for initial exercise of the power in England, Wales and
Northern Ireland: Lord Chancellor
(b) otherwise in England, Wales and Northern Ireland:
Civil Procedure Rule Committee (England and Wales)
Court of Judicature Rules Committee
(Northern Ireland)
(c) Court of Session (Scotland)
Power exercised by:
(a) Statutory Instrument
(b) Statutory Rule
(c) Scottish statutory instrument (Scotland)
Parliamentary Procedure:
(a) initial exercise of the power in England, Wales and
Northern Ireland: affirmative resolution (approval by both
Houses within 40 days of making)
(b) in England, Wales and Northern Ireland: negative
resolution
(c) in Scotland: instrument is laid before the Scottish
Parliament
35. Clauses 6(5), 7 and 10 of the Bill provide for a rule-making power in relation to
proceedings where the court has granted an application for a case to be heard using a
CMP (referred to in clause 6(1) as proceedings in which a “closed material
application” may be made). Paragraph 3 of Schedule 3 sets out the procedure with
respect to the initial exercise of the rule making power in England and Wales and
Northern Ireland.
36. It is appropriate to provide for this power because rules of court may make provision
at a level of detail which is not appropriate to include in primary legislation. In
addition, should procedural changes be required in the regulation of CMPs, Rules may
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be amended, subject to the relevant procedural safeguards, more easily and quickly
than primary legislation.
37. The initial exercise of the rule-making power in England, Wales and Northern Ireland
is to be by the Lord Chancellor rather than by the usual rule-making body for rules of
court, namely the Civil Procedure Rules Committee (in England and Wales) and the
Court of Judicature Rules Committee (in Northern Ireland). This is because the Rules
need to be in force at the same time as the Bill comes into force which is likely to be 2
months after Royal Assent due to existing proceedings in relation to which an urgent
application for a CMP may need to be made. It would be very difficult for the Rules
Committees to make the rules on the initial exercise of the powers to meet this
timetable.
38. Before making the Rules, the Lord Chancellor is required to consult with the Lord
Chief Justice of England and Wales or the Lord Chief Justice of Northern Ireland as
appropriate. And after the Rules are made they must be laid before Parliament and
approved by resolution of both Houses within 40 days (not counting time during
which Parliament is adjourned for more than 4 days or is dissolved or prorogued),
failing which the Rules will cease to have effect. The Government considers that this
affirmative procedure provides the appropriate level of Parliamentary scrutiny of the
Rules, while allowing the Rules to be made and come into force swiftly.
39. After the initial exercise of the powers, should the Rules need amendment, the usual
rule-making procedure in the Civil Procedure Act 1997 (for England and Wales) and
in the Judicature (Northern Ireland) Act 1978 (for Northern Ireland) will be followed.
This is the negative resolution procedure, but the rules will be made by the relevant
Rules Committee and following the usual consultation requirements if applicable.
40. In Scotland, the Court of Session will make the rules in the usual way. The Court of
Session is able to make the rules swiftly and so the issue above as to timing does not
apply. Although the rules are not subject to formal Parliamentary approval in
Scotland, they are subject to Parliamentary scrutiny.
41. There is precedent for the rule-making power in Schedule 2 to the Bill – both in terms
of the substance of the rules to be made under it and in terms of the Parliamentary
procedure for making them.
This is found most recently in Schedule 4 to the
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Terrorism Prevention and Investigation Measures Act 2011 (for proceedings relating
to Terrorism Prevention and Investigation Measures). It is also found in the Schedule
to the Prevention of Terrorism Act 2005 (in relation to control orders), in Part 6 of the
Counter-Terrorism Act 2008 (in relation to financial restriction proceedings) and in
Part 1 of the Terrorist Asset-Freezing etc. Act 2010 (in relation to asset freezing
proceedings). For England and Wales and Northern Ireland, it is anticipated that the
rules that will be made under the power in the Bill will be drawn from these existing
models. In so far as those rules relate to CMPs, there is additional precedent for such
proceedings, for example in the context of the Special Immigration Appeals
Commission proceedings and Proscribed Organisations Appeal Commission
proceedings. Similarly, for Scotland, the rules will largely be modelled on those for
TPIM proceedings in Scotland.
42. In relation to the Rules of court which are to be made under the Bill, clause 6(6)
provides for Rules to be made for the court or a party in relevant proceedings to notify
the Secretary of State that a declaration under clause 6(1) might be relevant. Rules
also may be made for a stay (or, in Scotland, a sist) of the proceedings whilst the
Secretary of State is considering the notification and for the Secretary of State to be
joined to any proceedings in relation to which a declaration has been made.
43. Clause 7 sets out matters which the Rules must secure. These include matters which
are fundamental to the operation of a CMP such as the ability for a relevant person to
apply to the court to disclose relevant sensitive material to only the court and any
special advocate which has been appointed (clause 7(1)). Subsections (2) and (3) set
out procedural protections which the court can order where a relevant person who is
required to disclose material to a person other than the court or any special advocate
decides not to make such disclosure. The protections include a direction to the
relevant person to not take a particular point in a case or to make such concessions as
the court may specify.
44. Clause 9 makes further provision in relation to what the Rules must specify, providing
that where a CMP is used the normal rules of disclosure which would apply to the
proceedings continue to apply in relation to the disclosure obligations of the relevant
person (subject to the CMP provisions).
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45. Clause 10(1) establishes the proposition that a person making Rules of Court must
have regard to the need to ensure that disclosures of information are not made where
they would be damaging to the interests of national security. Clause 10(2) provides an
illustrative list of the matters about which the rules may make provision.
This
includes the mode and burden of proof, the conducting of the proceedings in the
absence of the individual and his legal advisers and the function of special advocates.
Clause 11(2): Power to amend the definition of “relevant civil proceedings” in clause
6(6)
Power conferred on:
Secretary of State
Power exercised by:
Statutory Instrument
Parliamentary Procedure:
Affirmative resolution (statutory instrument not to be made
unless laid in draft and approved by resolution of each House
of Parliament)
46. Clause 6(7) provides the definition of “relevant civil proceedings”. “Relevant civil
proceedings” are civil proceedings in the High Court, Court of Appeal or Court of
Session. Clause 11(2) empowers the Secretary of State to amend the definition of
“relevant civil proceedings” by order.
47. It is appropriate to make provision in the Bill for this power because it is possible that
a case not within the scope of the current definition of “relevant civil proceedings”
will arise, such that a CMP is needed for the just consideration of the case to be heard
before a different court or tribunal whilst at the same time there is the need to protect
national security sensitive evidence from disclosure. Furthermore, if this happens, the
need to provide for the possibility of a CMP in such proceedings will be pressing in
terms of time. For these two reasons it is considered appropriate to provide for this
power since the changes can be made more quickly than amending primary
legislation.
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48. The Government considers that since the definition of “relevant civil proceedings” is
directly related to the scope of the ability of the civil courts to hear cases using a
CMP, it is appropriate for the level of Parliamentary scrutiny to be high. For this
reason, it is considered that the affirmative procedure provides the appropriate level of
scrutiny.
49. Clause 11(4) provides that if the definition of “relevant civil proceedings” is extended
to cover civil proceedings before any tribunal, the provisions of clauses 6 to 10 can be
amended for the purposes of explaining the meaning of “rules of court” in relation to
the particular tribunal and requiring or enabling rules of a particular description to be
made by such rules. An illustration of the latter are rules relating to the composition of
the tribunal when hearing or deciding whether to hear a case using a CMP. This
power is necessary to ensure the effective operation of a CMP in the event that a CMP
is required in a tribunal case.
50. Clause 11(5)(c) provides that nothing in clauses 6 to 11 is to be read as requiring a
court or tribunal to act in a manner inconsistent with Article 6 of the European
Convention on Human Rights. This includes the powers under those clauses referred
to in this Memorandum.
Ministry of Justice
May 2012
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