Justice and Security Act 2013

SCHEDULES

Section 1(7)

SCHEDULE 1 The Intelligence and Security Committee of Parliament

Tenure of office

1 (1) Subject as follows, a person appointed as a member of the ISC during a Parliament holds office for the duration of that Parliament.

(2) A member of the ISC vacates office if—

(a) the person ceases to be a member of the House of Parliament by virtue of which the person is a member of the ISC,

(b) the person becomes a Minister of the Crown, or

(c) a resolution for the person’s removal is passed in the House of Parliament by virtue of which the person is a member of the ISC.

(3) A member of the ISC may resign at any time by notice given to—

(a) the Chair of the ISC, or

(b) in the case of the member who is the Chair of the ISC, the Speaker of the House of Parliament by virtue of which the person is a member of the ISC.

(4) A person who ceases to be a member of the ISC is eligible for reappointment.

(5) Section 1(2) does not affect the validity of anything done between the occurrence of a vacancy and the vacancy being filled.

(6) Anything which, immediately before the end of a Parliament, is in the process of being done or omitted to be done by or in relation to the ISC may be continued by or in relation to the ISC in the new Parliament.

(7) Anything done or omitted to be done by or in relation to the ISC in a Parliament (or treated as so done or omitted) is, if in force or effective immediately before the end of that Parliament, to have effect as if done or omitted by or in relation to the ISC in the new Parliament so far as that is required for continuing its effect in that Parliament.

Procedure

2 (1) The ISC may determine its own procedure; but this is subject to sub-paragraphs (2) to (5).

(2) If on any matter there is an equality of voting among the members of the ISC, the Chair of the ISC has a second or casting vote.

(3) The Chair of the ISC may appoint another member of the ISC to act, in the Chair’s absence, as the chair of the ISC at any meeting of it.

(4) A person appointed under sub-paragraph (3) does not enjoy the right conferred on the Chair of the ISC by sub-paragraph (2).

(5) The quorum of the ISC is three.

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

Funding and other resources

3 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.

Access to information

4 (1) 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).

(2) If the Director-General of the Security Service, the Chief of the Secret Intelligence Service or the Director of the Government Communications Headquarters is asked by the ISC to disclose the information, then, as to the whole or any part of the information which is sought, that person must either—

(a) arrange for it to be made available to the ISC subject to and in accordance with a memorandum of understanding under section 2, or

(b) inform the ISC that the information cannot be disclosed because the Secretary of State has decided that it should not be disclosed.

(3) If the ISC asks a government department or any part of a government department to disclose the information, then, as to the whole or any part of the information which is sought, the relevant Minister of the Crown must either—

(a) arrange for it to be made available to the ISC subject to and in accordance with a memorandum of understanding under section 2, or

(b) inform the ISC that the information cannot be disclosed because the Secretary of State has decided that it should not be disclosed.

(4) The Secretary of State may decide under sub-paragraph (2)(b) or (3)(b) that information should not be disclosed only if the Secretary of State considers that—

(a) it is—

(i) sensitive information (as defined in paragraph 5), and

(ii) information which, in the interests of national security, should not be disclosed to the ISC, or

(b) it is information of such a nature that, if the Secretary of State were requested to produce it before a Departmental Select Committee of the House of Commons, the Secretary of State would consider (on grounds which were not limited to national security) it proper not to do so.

(5) In deciding for the purposes of sub-paragraph (4)(b) whether it would be proper not to disclose information, the Secretary of State must have regard to any guidance issued by a Minister of the Crown or a government department concerning the provision of evidence by civil servants to Select Committees.

(6) The disclosure of information to the ISC in accordance with sub-paragraph (2) is to be regarded for the purposes of the Security Service Act 1989 or the Intelligence Services Act 1994 as necessary for the proper discharge of the functions of the Security Service, the Secret Intelligence Service or (as the case may be) the Government Communications Headquarters.

(7) In this paragraph “relevant Minister of the Crown”, in relation to a request for information, means—

(a) such Minister of the Crown as is identified, for the purposes of requests of that description, in a memorandum of understanding under section 2, or

(b) if no Minister of the Crown is so identified, any Minister of the Crown.

Sensitive information

5 The following information is sensitive information for the purposes of paragraph 4(4)(a)—

(a) information which might lead to the identification of, or provide details of, sources of information, other assistance or operational methods available to—

(i) the Security Service,

(ii) the Secret Intelligence Service,

(iii) the Government Communications Headquarters, or

(iv) any part of a government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities,

(b) information about particular operations which have been, are being or are proposed to be undertaken in pursuance of any of the functions of the persons mentioned in paragraph (a)(i) to (iv),

(c) information provided by, or by an agency of, the Government of a country or territory outside the United Kingdom where that Government does not consent to the disclosure of the information.

Publication of information received in private

6 (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

(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.

Protection for witnesses

7 (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.

Section 19(1)

SCHEDULE 2 Consequential provision

Part 1 Oversight of intelligence and security activities

Intelligence Services Act 1994 (c. 13)

1 The following provisions of the Intelligence Services Act 1994 are repealed—

(a) section 10 (the Intelligence and Security Committee),

(b) section 11(1)(c) (the definition of “Minister of the Crown”), and

(c) Schedule 3 (further provision about the Intelligence and Security Committee).

Data Protection Act 1998 (c. 29)

2 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,”.

Northern Ireland Act 1998 (c. 47)

3 In section 69B(1)(a) of the Northern Ireland Act 1998 (disregarding notice of the Northern Ireland Human Rights Commission where it requires the disclosure of sensitive information)—

(a) for “paragraph 4 of Schedule 3 to the Intelligence Services Act 1994 (c. 13)” substitute “paragraph 5 of Schedule 1 to the Justice and Security Act 2013”, and

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

Regulation of Investigatory Powers Act 2000 (c. 23)

4 In section 60(1) of the Regulation of Investigatory Powers Act 2000 (duty to disclose documents and provide information to the Intelligence Services Commissioner) for “section 59” substitute “sections 59 and 59A”.

Freedom of Information Act 2000 (c. 36)

5 (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.”

Equality Act 2006 (c. 3)

6 In paragraph 14(1)(a) of Schedule 2 to the Equality Act 2006 (disregarding notice of the Commission for Equality and Human Rights where it requires the disclosure of sensitive information)—

(a) for “paragraph 4 of Schedule 3 to the Intelligence Services Act 1994 (c. 13)” substitute “paragraph 5 of Schedule 1 to the Justice and Security Act 2013”, and

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

Part 2 Closed material procedure

Judicature (Northern Ireland) Act 1978 (c. 23)

7 (1) Section 62 of the Judicature (Northern Ireland) Act 1978 (trial with and without jury) is amended as follows.

(2) In subsection (2)—

(a) at the end of paragraph (c), the word “or” is repealed, and

(b) after paragraph (c) insert—

“(ca) will involve section 6 proceedings; or”.

(3) After subsection (4) insert—

“(4A) An action in the High Court which by virtue of subsection (1) or (4) is being, or is to be, tried with a jury may, at any stage in the proceedings, be tried without a jury if the court concerned—

(a) is of opinion that the action involves, or will involve, section 6 proceedings; and

(b) in its discretion orders the action to be tried without a jury.

(4B) Where the court makes an order under subsection (4A)(b), it may make such other orders as it considers appropriate (including an order dismissing the jury).”

(4) After subsection (7) insert—

“(8) In this section “section 6 proceedings” has the meaning given by section 14(1) of the Justice and Security Act 2013 (certain civil proceedings in which closed material applications may be made).”

Senior Courts Act 1981 (c. 54)

8 (1) Section 69 of the Senior Courts Act 1981 (trial by jury) is amended as follows.

(2) In subsection (1), at the end, insert “or unless the court is of opinion that the trial will involve section 6 proceedings”.

(3) After subsection (3) insert—

“(3A) An action in the Queen’s Bench Division which by virtue of subsection (1) or (3) is being, or is to be, tried with a jury may, at any stage in the proceedings, be tried without a jury if the court concerned—

(a) is of opinion that the action involves, or will involve, section 6 proceedings, and

(b) in its discretion orders the action to be tried without a jury.

(3B) Where the court makes an order under subsection (3A)(b), it may make such other orders as it considers appropriate (including an order dismissing the jury).”

(4) In subsection (4) for “(3)” substitute “(3B)”.

(5) After subsection (5) insert—

“(6) In this section “section 6 proceedings” has the meaning given by section 14(1) of the Justice and Security Act 2013 (certain civil proceedings in which closed material applications may be made).”

Special Immigration Appeals Commission Act 1997 (c. 68)

9 (1) The Special Immigration Appeals Commission Act 1997 is amended as follows.

(2) After section 6 (appointment of person to represent appellant’s interests) insert—

“6A Procedure in relation to jurisdiction under sections 2C and 2D

(1) Sections 5 and 6 apply in relation to reviews under section 2C or 2D as they apply in relation to appeals under section 2 or 2B.

(2) Accordingly—

(a) references to appeals are to be read as references to reviews (and references to appeals under section 2 or 2B are to be read as references to reviews under section 2C or 2D), and

(b) references to an appellant are to be read as references to an applicant under section 2C(2) or (as the case may be) 2D(2).”

(3) After section 7(1) (appeals from the Commission) insert—

“(1A) Where the Commission has made a final determination of a review under section 2C or 2D, any party to the review may bring an appeal against that determination to the appropriate appeal court.”

Race Relations (Northern Ireland) Order 1997 (S.I. 1997/869 (N.I. 6))

10 In Article 54A of the Race Relations (Northern Ireland) Order 1997 (claims under Article 20A in immigration cases), at the end, insert—

“(6) This Article applies in relation to reviews under section 2D of the 1997 Act as it applies in relation to appeals under that Act.”

Regulation of Investigatory Powers Act 2000 (c. 23)

11 (1) Section 18 of the Regulation of Investigatory Powers Act 2000 (exclusion of intercepted communications etc. from legal proceedings: exceptions) is amended as follows.

(2) In subsection (1)—

(a) at the end of paragraph (e), the word “or” is repealed, and

(b) after paragraph (f) insert “, or

(g) any section 6 proceedings within the meaning given by section 14(1) of the Justice and Security Act 2013 (certain civil proceedings in which closed material applications may be made).”

(3) In subsection (2)—

(a) in the opening words, for “(f)” substitute “(g)”,

(b) in paragraph (a)—

(i) in sub-paragraph (i), after “appellant” insert “or (as the case may be) applicant”,

(ii) in sub-paragraph (ii), after “appellant” insert “or applicant”, and

(iii) at the end, the word “or” is repealed, and

(c) after paragraph (b) insert—

“(c) in the case of proceedings falling within paragraph (g) where the only relevant person is the Secretary of State, to—

(i) a person, other than the Secretary of State, who is or was a party to the proceedings; or

(ii) any person who for the purposes of the proceedings (but otherwise than by virtue of appointment as a special advocate) represents a person falling within sub-paragraph (i); or

(d) in the case of proceedings falling within paragraph (g) where the Secretary of State is not the only relevant person or is not a relevant person but is a party to the proceedings, to—

(i) a person, other than the relevant person concerned or the Secretary of State, who is or was a party to the proceedings; or

(ii) any person who for the purposes of the proceedings (but otherwise than by virtue of appointment as a special advocate) represents a person falling within sub-paragraph (i).”

(4) After subsection (2) insert—

“(2A) In subsection (2)(c) and (d) “relevant person”, in relation to proceedings falling within subsection (1)(g), has the meaning given by section 14(1) of the Justice and Security Act 2013.”

Equality Act 2010 (c. 15)

12 In section 115 of the Equality Act 2010 (immigration cases), at the end, insert—

“(8) This section applies in relation to reviews under section 2D of the Special Immigration Appeals Commission Act 1997 as it applies in relation to appeals under the immigration provisions.”

Section 19(1)

SCHEDULE 3 Transitional provision

Part 1 Oversight of intelligence and security activities

1 (1) The persons who, immediately before the coming into force of section 1(1), were members of the previous Intelligence and Security Committee become, on the coming into force of section 1(1), members of the new Intelligence and Security Committee.

(2) The person who, immediately before the coming into force of section 1(1), was the Chairman of the previous Intelligence and Security Committee becomes, on the coming into force of section 1(1), the Chair of the new Intelligence and Security Committee.

(3) The new Intelligence and Security Committee may have access to documents or other information provided or belonging to the previous Intelligence and Security Committee.

(4) In this paragraph—

• “the new Intelligence and Security Committee” means the Intelligence and Security Committee of Parliament established under section 1 of this Act,

• “the previous Intelligence and Security Committee” means the Intelligence and Security Committee established under section 10 of the Intelligence Services Act 1994.

Part 2 Closed material procedure

2 Sections 6 to 14, and paragraphs 7, 8 and 11 of Schedule 2 (other than paragraph 11(3)(b)(i) and (ii)), apply in relation to proceedings begun, but not finally determined, before the coming into force of section 6 (in addition to proceedings begun on or after the coming into force of that section).

3 (1) The first time after the passing of this Act that rules of court are made in exercise of the powers conferred by sections 6 to 14 in relation to proceedings in England and Wales or in Northern Ireland before a court of a particular description, the rules (together with any related rules of court) may be made by the Lord Chancellor instead of by the person who would otherwise make them.

(2) Sub-paragraph (1) does not apply to rules of court in relation to proceedings before the Supreme Court.

(3) Before making rules of court under sub-paragraph (1), the Lord Chancellor must consult—

(a) in relation to rules applicable to proceedings in England and Wales, the Lord Chief Justice of England and Wales, and

(b) in relation to rules applicable to proceedings in Northern Ireland, the Lord Chief Justice of Northern Ireland.

(4) But the Lord Chancellor is not required to undertake any other consultation before making the rules.

(5) A requirement to consult under sub-paragraph (3) may be satisfied by consultation that took place wholly or partly before the passing of this Act.

(6) Rules of court made by the Lord Chancellor under sub-paragraph (1)—

(a) must be laid before Parliament, and

(b) if not approved by a resolution of each House before the end of 40 days beginning with the day on which they were made, cease to have effect at the end of that period.

(7) In determining that period of 40 days no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.

(8) If rules cease to have effect in accordance with sub-paragraph (6)—

(a) that does not affect anything done in previous reliance on the rules, and

(b) sub-paragraph (1) applies again as if the rules had not been made.

(9) The following provisions do not apply to rules of court made by the Lord Chancellor under this paragraph—

(a) section 3(6) of the Civil Procedure Act 1997 (Parliamentary procedure for civil procedure rules),

(b) section 56(1), (2) and (4) of the Judicature (Northern Ireland) Act 1978 (statutory rules procedure).

(10) Until the coming into force of section 85 of the Courts Act 2003, the reference in sub-paragraph (9)(a) to section 3(6) of the Civil Procedure Act 1997 is to be read as a reference to section 3(2) of that Act.

(11) In this paragraph “related rules of court” means rules of court that—

(a) are contained in the same instrument as the rules mentioned in sub-paragraph (1), and

(b) relate specifically to the same kind of proceedings as those rules.

4 (1) An order under section 19(2) may, in particular, make provision about the application of section 15, and paragraphs 9, 10 and 12 of Schedule 2, to any direction or decision of the Secretary of State which—

(a) is of a kind falling within section 2C(1)(a) and (b) or (as the case may be) 2D(1)(a) of the Special Immigration Appeals Commission Act 1997, and

(b) was made before the section 15 commencement day.

(2) Provision of the kind mentioned in sub-paragraph (1) may, in particular, provide for—

(a) the Secretary of State to certify under section 2C(1)(c) or (as the case may be) 2D(1)(b) of the Special Immigration Appeals Commission Act 1997, on or after the section 15 commencement day, any direction or decision falling within sub-paragraph (1),

(b) the termination of any judicial review proceedings, or proceedings on appeal from such proceedings, which relate to a direction or decision which is so certified (whether such proceedings began before, on or after the section 15 commencement day).

(3) In this paragraph “the section 15 commencement day” means the day on which section 15 comes into force.

Part 3 “Norwich Pharmacal” and similar jurisdictions

5 Sections 17 and 18 apply in relation to proceedings begun, but not finally determined, before the coming into force of section 17 (in addition to proceedings begun on or after the coming into force of that section).