Justice & Security Bill (with advice)

House of Lords
Equality and human rights impact statement
Report stage and third reading
October 2012

Key points:

The Commission has analysed the proposals for the Justice and Security Bill in light of the requirements of the Human Rights Act 1998.  We have also sought a legal opinion from leading Counsel on the proposals in clauses 6-11 of the Bill on the use of closed material procedures in civil claims.

In summary, the legal opinion concludes that:

  • The provisions of the Bill relating to the introduction of a closed material procedure are incompatible with the common law right to a fair trial of an excluded party;
  • The options to invoke a closed material procedure and to make a closed material application are incompatible with article 6 of the European Convention on Human Rights (the Convention) notwithstanding clause 11(5)(c) of the Bill;  and
  • The options given to a relevant person to elect not to comply with orders of the court for disclosure and to provide a summary of evidence. referred to as ‘gisting’, are likewise incompatible with article 6 of the Convention notwithstanding clause 11(5)(c) of the Bill.

In addition our analysis on clauses 6-11 notes that:

  • There is no clear definition of national security or what constitutes sensitive material. Furthermore clause 6(3) prohibits a court from considering whether the interests of justice outweigh those of national security.

Our analysis in relation to clauses 1-5 of the Bill and schedule 1 concludes that:

  • The proposals to improve oversight of the activities of the Security Services are a welcome development.
  • However, further reforms than those proposed to the Intelligence Service Committee and Intelligence Services Commissioner are required to ensure effective independent oversight.
  • In particular the role of the Prime Minister in relation to the appointment, functions and reports should be transferred to the Intelligence and Security Committee (ISC) or to Parliament.

Our analysis in relation to clauses 13 and 14 of the Bill concludes that:

  • The government has not provided sufficient evidence to justify the removal of the Norwich Pharmacal jurisdiction.

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