Following the Bingham Centre's Briefing Paper drafted by Dr Tom Hickman and Professor Adam Tomkins, the Bingham Centre wrote to Lord Wallace of Tankerness on 23 July 2012 to raise an issue with the Government arising from an amendment to the Justice and Security Bill moved by Lord Thomas of Gresford. To read the letter in full, click here. During the Bills Report Stage in the House of Lords on 21 November 2012, reported in Hansard, Lord Wallace of Tankerness made a statement to Parliament regarding the acceptance of the need to amend the Bill:
Amendment 39 Moved by Lord Wallace of Tankerness
"39: Clause 6, page 4, line 35, at end insert "and any other enactment which 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."
Lord Wallace of Tankerness: My Lords, in Committee, my noble friend Lord Thomas of Gresford tabled an amendment seeking to amend the effect of the disclosure gateway provisions in the Security Service Act 1989 and the Intelligence Services Act 1994. The amendment was based on a suggestion that emanated from the Bingham Centre for the Rule of Law. At that time the Government resisted the amendment on the grounds that it was not necessary to secure the agencies' compliance with their disclosure obligations and that it was wider than appropriate because it would mean the courts could order disclosure into civil proceedings regardless of the connection between those proceedings and the agencies' functions.However, following the Committee stage, Professor Sir Jeffrey Jowell from the Bingham Centre wrote to me urging the Government to reconsider the issues raised by the amendment. After careful consideration and consultation with experts on this complex area of law, the Government have concluded that a similar amendment would be necessary. This is a technical area of law and it may help if I briefly explain why the change is needed.Under Clause 6, the court must, on an application from the Secretary of State, make a declaration that the proceedings are ones in which a closed material application may be made if the court considers that a party would be required to disclose material in the course of proceedings and disclosure would be damaging to the interests of national security. The problem with the Bill as drafted is that it does not make it clear that statutory bars to disclosure into open court should not prevent there being disclosure into closed material procedures.I assure the House that the Liberty analysis of this amendment is wrong. In an e-mail to parliamentarians its policy director described the amendment as being able to expand the categories of secret information on which the application for a CMP declaration can be based. That is not the case. The amendment makes it clear that the court should ignore any statutory provision that would prevent the disclosure of relevant material into open court but not into closed material procedures when the court is deciding the question of whether a party to proceedings would be required to disclose material. In other words, we do not want to be in the unfortunate position where we are unable to use a CMP as a result of these Acts covering the Security and Intelligence Agencies. These Acts are in part designed to ensure that highly sensitive information is not made public in the interests of our national security. The closed material procedures, however, have been assessed to be secure enough to allow highly sensitive information into a courtroom to be considered by a judge. The Government and agencies want the chance for a judge to come to an independent judgment. We do not want silence on these important matters.Once again, I am grateful to my noble friend Lord Thomas for having raised this issue in Committee. While we may not have agreed on every point today, I am always grateful for his tireless work in holding the Government to account and for his detailed contribution. I am particularly grateful to the Bingham centre for taking time to scrutinise the Bill and for writing to me and asking the Government to rethink. The centre is an important legal research institute and the Government welcome its contribution to make sure that the Bill is suitably drafted. I beg to move.
Lord Thomas of Gresford: My Lords, have I not always said that this is a listening Government? I am grateful to my noble and learned friend for taking on board what I said on the last occasion, which I confess I have now totally forgotten. However, clearly it was very persuasive and I thank the noble and learned Lord for the amendment.
Amendment 39 agreed."