PARLIAMENTARY DEBATES HOUSE OF COMMONS OFFICIAL REPORT GENERAL COMMITTEES

Public Bill Committee

JUSTICE AND SECURITY BILL [LORDS]

Eighth Sitting Thursday 7 February 2013 (Afternoon)

CONTENTS

CLAUSES 14 to 16 agreed to. SCHEDULES 2 and 3 agreed to, with amendments. CLAUSE 17 agreed to, with an amendment. New clauses considered. Bill, as amended, to be reported.

PUBLISHED BY AUTHORITY OF THE HOUSE OF COMMONS LONDON – THE STATIONERY OFFICE LIMITED £5·00 PBC (Bill 099) 2012 - 2013 Members who wish to have copies of the Official Report of Proceedings in General Committees sent to them are requested to give notice to that effect at the Vote Office.

No proofs can be supplied. Corrigenda slips may be published with Bound Volume editions. Corrigenda that Members suggest should be clearly marked in a copy of the report—not telephoned—and must be received in the Editor’s Room, House of Commons,

not later than

Monday 11 February 2013

STRICT ADHERENCE TO THIS ARRANGEMENT WILL GREATLY FACILITATE THE PROMPT PUBLICATION OF THE BOUND VOLUMES OF PROCEEDINGS IN GENERAL COMMITTEES

© Parliamentary Copyright House of Commons 2013 This publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. 277 Public Bill Committee7 FEBRUARY 2013 Justice and Security Bill [Lords] 278

The Committee consisted of the following Members:

Chairs: †MR DAVID CRAUSBY,MR JAMES GRAY

† Alexander, Heidi (Lewisham East) (Lab) † Murphy, Paul (Torfaen) (Lab) † Brazier, Mr Julian (Canterbury) (Con) † Neill, Robert (Bromley and Chislehurst) (Con) † Brokenshire, James (Parliamentary Under-Secretary † Nokes, Caroline (Romsey and Southampton North) of State for the Home Department) (Con) † Crockart, Mike (Edinburgh West) (LD) Paisley, Ian (North Antrim) (DUP) † Evans, Graham (Weaver Vale) (Con) † Phillipson, Bridget (Houghton and Sunderland † Evennett, Mr David (Lord Commissioner of Her South) (Lab) Majesty’s Treasury) † Scott, Mr Lee (Ilford North) (Con) † Slaughter, Mr Andy (Hammersmith) (Lab) † Gilmore, Sheila (Edinburgh East) (Lab) † Wright, Jeremy (Parliamentary Under-Secretary of † Hillier, Meg (Hackney South and Shoreditch) (Lab/ State for Justice) Co-op) † Huppert, Dr Julian (Cambridge) (LD) Steven Mark, Lloyd Owen, Committee Clerks † Johnson, Diana (Kingston upon Hull North) (Lab) † Lewis, Dr Julian (New Forest East) (Con) † attended the Committee 279 Public Bill CommitteeHOUSE OF COMMONS Justice and Security Bill [Lords] 280 Public Bill Committee Division No. 11] AYES Thursday 7 February 2013 Alexander, Heidi Murphy, rh Paul Gilmore, Sheila Phillipson, Bridget Hillier, Meg (Afternoon) Johnson, Diana Slaughter, Mr Andy

NOES [MR DAVID CRAUSBY in the Chair] Brazier, Mr Julian Huppert, Dr Julian Brokenshire, James Lewis, Dr Julian Justice and Security Bill [Lords] Crockart, Mike Neill, Robert Evans, Graham Scott, Mr Lee Evennett, Mr David Wright, Jeremy Clause 14 Question accordingly negatived. DISCLOSURE PROCEEDINGS Clause 14 ordered to stand part of the Bill. Amendment proposed (this day): 78, in clause 14, page 11, line 14, at end insert ‘where that information relates to national security or the interests of the United Clause 15 Kingdom’.—(Diana Johnson.)

2pm REVIEW OF CERTIFICATION Question again proposed, That the amendment be Question proposed, That the clause stand part of the made. Bill.

The Chair: I remind the Committee that with this we are discussing the following: Diana Johnson: Clause 15 provides a review procedure for the Secretary of State using the certificate procedure Amendment 79, in clause 14, page 11, line 15, leave under clause 14(3)(e). Clause 15(3) states that in looking out ‘an’ and insert ‘a foreign’. at the matter, the court Amendment 80, in clause 14, page 11, line 17, leave “must apply the principles which would be applied in judicial out ‘an’ and insert ‘a foreign’. review proceedings.” In light of the comments that have been made recently Amendment 81, in clause 14, page 11, line 18, leave by the Lord Chancellor on judicial review proceedings, out paragraph (d). I wondered if there was anything the Committee needs to be aware of in terms of changes to judicial review Diana Johnson (Kingston upon Hull North) (Lab): I that might have an impact on this particular proceeding. welcome you back to the Committee after our short break, Mr Crausby. It was interesting to hear what the Under-Secretary of State for Justice, the hon. Member The Parliamentary Under-Secretary of State for Justice for Kenilworth and Southam, had to say. I think he (Jeremy Wright): I am grateful for the hon. Lady’s moved from a non-speaking part to a speaking part remarks. I do not think that what the Secretary of State very well. Clearly, I did not agree with everything he for Justice was saying would have any direct bearing at said, but I thought he put it very well. I look forward to all on the principles that are applied by the courts when seeing whether the hon. Member for Edinburgh West they consider judicial review proceedings. We are concerned will table some amendments on Report to represent his about the extent of judicial review proceedings, but that view. I am not sure whether it is his view alone or one is a different matter. In relation to this, it would not that he shares with other Liberal Democrats or the have a direct effect on our deliberations. The hon. Lady coalition Government. My right hon. Friend the Member is right that clause 15 proposes that the courts can for Torfaen talked with vast knowledge and experience review the application of judicial review principles, and on the subject. I found it difficult to believe that he was review the Secretary of State’s decision that the disclosure ever a green Minister of State; I am sure he was of the material would damage national security or accomplished from the start. international relations. Of course if such an application After listening carefully to the Minister, I still have were successful, the prohibition on the court ordering concerns about clause 14. It must deal with the control disclosure of the information referred to in the certificate principle and the relationship we have with our allies would not apply, and disclosure could therefore be and countries that provide intelligence to us, and I am ordered under the court’s usual residual disclosure still concerned that it is too widely drafted. I want to jurisdiction. In conclusion, on this clause I would simply test the Committee’s opinion on amendment 78, but I say that we believe it is sensible to have that review will reserve the Opposition’s position on amendments 79 available. Clause 15 sets it out, and I commend the to 81 and we might return to the matter on Report. clause to the Committee. Question put and agreed to. Question put, That the amendment be made. Clause 15 accordingly ordered to stand part of the Bill. The Committee divided: Ayes 7, Noes 10. Clause 16 ordered to stand part of the Bill. 281 Public Bill Committee7 FEBRUARY 2013 Justice and Security Bill [Lords] 282

Schedule 2 (4) The court may revoke a declaration under subsection (2) or (3)— CONSEQUENTIAL PROVISION (a) on the application of— Amendments made: 49, in schedule 2, page 17, line 30, (i) the Secretary of State (whether or not the Secretary at end insert— of State is a party to the proceedings), or (ii) any party to the proceedings, or ‘Data Protection Act 1998 (c. 29) 1A In section 63A of the Data Protection Act 1998 (application to (b) of its own motion. Parliament)— (5) In deciding for the purposes of subsection (2) or (3) (a) in subsection (2), after “Commons,” insert “other than whether a declaration continues to be in the interests of the fair where they are determined by or on behalf of the and effective administration of justice in the proceedings, the Intelligence and Security Committee of Parliament,”, court must consider all of the material that has been put before it and in the course of the proceedings (and not just the material on which the decision to make the declaration was based). (b) in subsection (3), after “Lords,” insert “other than where they are determined by or on behalf of the (6) Rules of court must make provision— Intelligence and Security Committee of Parliament,”.’. (a) as to how a formal review is to be conducted under Amendment 50, in schedule 2, page 18, line 4, at end subsection (3); insert— (b) as to when the pre-trial disclosure exercise is to be considered to have been completed for the purposes ‘Freedom of Information Act 2000 (c. 36) of subsection (3).’.—(James Brokenshire.) 3A (1) The Freedom of Information Act 2000 is amended as follows. Brought up, read the First and Second time, and added to the Bill. (2) In section 23 (information supplied by, or relating to, bodies dealing with security matters), in subsection (3), at the end insert— New Clause 1 “(o) the Intelligence and Security Committee of Parliament.” (3) In Part 1 of Schedule 1 (Public Authorities; General)— REPORTING AND REVIEW (a) in paragraph 2, after paragraph (d) insert— ‘(1) As soon as reasonably practicable after the end of every (e) information held by the Intelligence and Security three-month period the Secretary of State must— Committee of Parliament.”; (a) prepare a report about his exercise of the powers (b) in paragraph 3, after paragraph (d) insert— conferred on him under this Part of this Act during (e) information held by the Intelligence and Security that period; and Committee of Parliament.”’.—(James Brokenshire.) (b) lay a copy of that Report before Parliament. Schedule 2, as amended, agreed to. (2) The person appointed by the Secretary of State to review the operation of the provisions of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006 must also carry out an annual Schedule 3 review of the operation of the provisions of this Part of this Act.’.—(Dr Huppert.) TRANSITIONAL PROVISION Brought up, and read the First time. Amendment made: 51, in schedule 3, page 21, line 22, after‘Committee’,insert‘of Parliament’.—(JamesBrokenshire.) Dr Julian Huppert (Cambridge) (LD): I beg to move, Schedule 3, as amended, agreed to. That the clause be read a Second time.

Clause 17 The Chair: With this it will be convenient to discuss the following:

COMMENCEMENT, EXTENT AND SHORT TITLE New clause 2—Annual renewal— Amendment made: 34, in clause 17, page 14, line 1, leave ‘(1) The Secretary of State’s powers under Part 2 of this Act out subsection (8).—(James Brokenshire.) expire at the end of the period of one year beginning with the day on which this Act is passed. Clause 17, as amended, ordered to stand part of the (2) The Secretary of State may, by order made by statutory Bill. instrument, provide that the Secretary of State’s powers under Part 2 of this Act are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an New Clause 5 order under this subsection but are to continue in force after that time for a period not exceeding one year. REVIEW AND REVOCATION OF DECLARATION UNDER (3) An order under this section may not be made unless a draft SECTION 6 of it has been laid before Parliament and approved by a ‘(1) This section applies where a court seised of relevant civil resolution of each House.’. proceedings has made a declaration under section 6. New clause 11—Expiry and renewal— (2) The court must keep the declaration under review, and may ‘(1) The Secretary of State’s powers under sections 6 to 11 of at any time revoke it if it considers that the declaration is no this Act expire at the end of the period of one year beginning longer in the interests of the fair and effective administration of with the day on which this Act is passed. justice in the proceedings. (2) The Secretary of State may, by order made by statutory (3) The court must undertake a formal review of the declaration instrument, provide that the Secretary of State’s powers under once the pre-trial disclosure exercise in the proceedings has been part 2 of this Act are not to expire at the time when they would completed, and must revoke it if it considers that the declaration otherwise expire under subsection (1) or in accordance with an is no longer in the interests of the fair and effective administration order under this subsection but are to continue in force after that of justice in the proceedings. time for a period not exceeding one year. 283 Public Bill CommitteeHOUSE OF COMMONS Justice and Security Bill [Lords] 284

[The Chair] In particular, we want the independent reviewer to review the powers every year, so that he can provide his (3) An order under this section may not be made unless a draft detailed expertise to assess if they are working as intended, of it has been laid before Parliament and approved by a or things are going wrong that Parliament should be resolution of each House.’. alerted to and should have a look at. That is what new New clause 12—Reporting and review— clause 1 would do, and I hope that the Government will ‘(1) As soon as reasonably practicable after the end of every be able to accept the reasoning behind it, and be helpful. three month period the Secretary of State must— Before I move on to new clause 2, I should compare (a) prepare a report about his exercise of the powers and contrast new clause 1, which my hon. Friend, the conferred on him, and the exercise of the powers and Member for Edinburgh West, and I tabled before Christmas, rights conferred on others, under clauses 6 to 11 of with the rather similar new clause 12 that was tabled by this Act during that period; and the hon. Member for Hammersmith a couple of weeks (b) lay a copy of that report before Parliament. ago. The only difference between the two, at least that I (2) The person appointed by the Secretary of State to review can see, is which sections we are referring to. I hope that the operation of the provision of the Terrorism Act 2000 and the hon. Gentleman will accept that we are looking part 1 of the Terrorism Act 2006 must also carry out an slightly more broadly, but we are particularly looking at annual review of the operation of the provisions of this part of this Act.’. some of the concerns that my hon. Friend has already raised about some of the Norwich Pharmacal conditions. They are what they are at the moment, and we will have Dr Huppert: Thank you very much, Mr Crausby, it is to see what sort of constraints the Joint Committee on a pleasure to serve again under your Chairmanship. I Human Rights might recommend we make. They should do not intend to detain the Committee very long with also be subject to review in case anything is going the details; I suspect they are relatively self-explanatory wrong, independently of how that might be changed in and I hope that we will have a constructive response the future. from the Government on these issues. Essentially, the new clauses derive in their entirety Diana Johnson: I am interested that the hon. Gentleman from the Joint Committee on Human Rights’ report talked about Norwich Pharmacal. I put it to him that where the independent reviewer, who has been quoted surely one of the aims of the provisions in clause 14 is so often, made it very clear that he was in favour of the to provide certainty to foreign states when they provide principle of annual review by an independent reviewer, intelligence. If there is a possibility that in the future not least with what he described as the danger of that might change, is that not defeating the object of “creep”. There is a lovely quote from him: clause 14? “A procedure that is introduced in a small way ends up being used quite a lot or a procedure that is introduced as one procedure Dr Huppert: The hon. Lady will be aware that one then crosses the species barrier into another type of procedure cannot provide absolute certainty because Parliament and, before you know where you are, it is all around.” can, at any time, legislate to change things. Reporting We have seen this happen with a whole range of legislation on how it is working is not saying that it would automatically in the past, particularly some of the huge panoply of be dropped, and I will get on to sunset clauses in a counter-terror legislation brought in by the party opposite. moment. However, there is no way that this Parliament As we all know, it ended up with someone being removed can give complete certainty to anybody that the law in from their conference under it. this country will never be changed in the future. I am These new clauses would implement what is sure the hon. Lady realises that and fully accepts it. One recommended by the Joint Committee on Human Rights, of the principles about a review, and reporting on how a so new clause 1 would require a report on how the provision is being used, is that we may discover that we powers are being used. This is very important because have not provided sufficient protection. I find it hard to we do not yet know exactly how many cases might be imagine how that would be, but I hope that she would covered and we do not know what sort of rare events or agree with the principle that we should know how exceptions might happen. It is important that there is legislation that we have passed is being operated in that clarity and reporting so that Parliament can have a reality—what happens when it gets out into the wild. look. We all make errors when legislating; all Governments New clauses 1 and 12 are similar, but ours goes that will always get things slightly wrong as things work out slight step further and says that we want to know how and as unexpected events happen. It would be helpful to things that we pass are progressing. monitor what is happening so that we can see if it is working as the Government and Opposition intended. 2.15 pm If it is not, I want to make sure that we know that it is New clause 2 deals with annual renewal and is, again, not, and that we have the opportunity on an early remarkably similar to new clause 11, tabled some time occasion to try to correct that. earlier. Sunset clauses were a fairly standard thing that New clause 1 would say that all of the powers in was accepted by the previous Government on a number (1)(b) should be reported. The text taken from the Joint of occasions for some of the rather extraordinary legislation Committee on Human Rights suggests that that should that they introduced. We, as Parliament, should have be done every three months. If the Government wish to the opportunity not just to wait until there happens to have a different time period, I am relatively relaxed be time in the parliamentary schedule to remove something about the exact time period; I do not want this to be we feel is no longer necessary, but to update the legislation overly onerous. The principle should be that the annually. The Conservative party argued for that on a Government need to make those reports and lay them number of occasions when it was in opposition. The before Parliament. Opposition, presumably, agree with it because they have 285 Public Bill Committee7 FEBRUARY 2013 Justice and Security Bill [Lords] 286 tabled new clause 12. Therefore, the only real debate is Mr Slaughter: If there were concerns regarding the how frequently there should be such a sunset and exactly way in which the attack on Norwich Pharmacal jurisdiction what should be covered. is phrased in the Bill at the moment, one would have I have the same disagreement, I suspect, that the hon. thought that our amendments, as far as they met the Member for Kingston upon Hull North has. New clause 2, concerns, would be supported. which was recommended by the Joint Committee on It appears from their sunset clauses and review procedures Human Rights, would cover the entirety of part 2, that the Liberal Democrats wish for a three-monthly or whereas new clause 12, which was tabled by the hon. annual process of unpicking Norwich Pharmacal Member for Hammersmith, would cover merely the jurisdiction, which, as the Minister without Portfolio closed material procedure and would not apply any said, would create exactly the uncertainty that the provisions more broadly than that. Interestingly, new clause 12 in the Bill are designed to correct. However, that is a would also not apply to clauses 12 and 13, which deal matter for them. It explains why we differentiated our with changes in CMP for immigration and employment new clauses in that way. purposes. I dare say that at some point, we will hear the reasons for why that is. Otherwise, the new clauses are The Parliamentary Under-Secretary of State for the fairly similar. Home Department (James Brokenshire): I accept the What we are proposing is the sort of thing Governments hon. Gentleman’s points about uncertainty, but does he tend to make available and often concede in order to get equally accept that his own new clause creates huge legislation through. I hope that the Government will uncertainty for the court? Litigation may be ongoing look at the proposals seriously and take steps towards without any certainty that that procedure will be able to the proposals from the Joint Committee on Human continue. Rights. I am happy to work with the Government on the subject. New clause 2 suggests a one-year sunset clause. I had a conversation with the Home Secretary Mr Slaughter: That, of course, was the point made by regarding the legislation on terrorism prevention and the noble Lord Wallace of Tankerness in the other investigation measures, which ended up with a five-year place. The answer is in two parts. Partly it is what the sunset clause. There is a range of numbers between one hon. Member for Cambridge has said, which is that if year and five years that could be considered. the Government do not like the detail—the regularity of review—they are welcome to propose their own If we are going to do something exceptional, it is alternative to that. The central point—this is where I important that we check that we are doing it and have a suspect we will disagree—is how severe this change in discussion about whether we are going the right way, or civil procedure rules and civil law is. It will require the whether things are going in an unintended direction. I ultimate in parliamentary scrutiny, and that will be the hope that the Government will look seriously at the essence of my submission now. proposal, and I look forward to hearing the opinion of other members of the Committee. To finish the point that I was making, the other difference between the new clauses, at least in relation to new clause 12, is the insertion of the phrase “rights Mr Andy Slaughter (Hammersmith) (Lab): I will conferred on others”. I am grateful to Professor McNamara speak to my new clauses as well as those tabled by the for highlighting that in the brief that he gave to the hon. Member for Cambridge. He is renowned for his Committee. He states: brevity and taciturnity, and I wish I could emulate him; “This falls short of what is needed for transparency because it I will do my best. is not only the Secretary of State that has powers under the Bill. It is no surprise that there are some similarities between Other Secretaries of State may seek closed proceedings, as may our new clauses and those tabled by the hon. Gentleman, parties, and (depending on the final form of the Bill) there may be because they are cribbed almost entirely from the applications to intervene.” recommendations of the Joint Committee on Human Rights. To be precise, the differences are as follows. Dr Huppert: I apologise for not addressing that point Our new clauses refer specifically to the clauses relating in my remarks. That was an error on my part. The to CMPs in civil proceedings, whereas those tabled by concern that I have is how the Secretary of State could the Liberal Democrats refer to the whole of part 2. We in reality do that. I can see the intention, but given that wanted to make that distinction partly for the reasons we have established that there are routes for other given by the Minister without Portfolio, in his response parties to make applications, would the Secretary of to the Joint Committee last week. State necessarily be able to do that? It would be great if As my hon. Friend the Member for Kingston upon they could, but I am a little concerned that it might not Hull North said, we do not approach Norwich Pharmacal be possible. in the way that the Liberal Democrats appear to promote. I am yet again confused, because, having said that they Mr Slaughter: No doubt the Minister will say that it share the concerns of the Joint Committee, they did not is impractical. This is a lacuna that allows an opportunity vote for our amendment, which would have gone part for the review not to take place in a thorough way. The of the way—not all of it—towards meeting those concerns. hon. Gentleman has a reasonable point, but if the No doubt we will find out at some point, by reading principle of the review is accepted, which I hope it is, it Twitter or blogs, what the spin on that is. is a matter for the Government to define how that will be accomplished. Dr Huppert: Can the hon. Gentleman point to where Those are the only significant differences between the his amendment was recommended in the report by the various new clauses tabled by the Liberal Democrats Joint Committee on Human Rights? and Labour Members. We say that reviews are necessary 287 Public Bill CommitteeHOUSE OF COMMONS Justice and Security Bill [Lords] 288

[Mr Slaughter] I and my colleagues am unhappy about the way the amendments were brought forward at a late stage in the and we disagree with what the Minister without Portfolio Committee process. The Bill has a chequered history. I said in general. In response to the Joint Committee on am not just talking about the procedural irregularities—the Human Rights last week, he said that there was a promise of a White Paper that was never delivered, the provision for a review, anyway, because there was now a stages that were rushed through and fundamental process for a post-legislative review, which the Select amendments being introduced at the last stage. I am far Committee would undertake. I have no doubt the Select from clear what the view is of either part of the Committee will be assiduous in that review, but I do not Government, let alone both parts of the Government think that that exonerates the Government from having working together, in relation to the Bill. Therefore, if their own process. the Bill is enacted in its current form or something close The Government say that there is a distinction between to its current form—obviously it has several stages to go this Bill and legislation such as the Terrorist Asset-Freezing through—it is important that there is a review process etc. Act 2010 and TPIMS, where there is a report to and regular parliamentary oversight. Parliament on a quarterly basis and which are reviewed In summary, the Government’s position, if my by the independent reviewer. They seek to make a submissions of the past two weeks have been correct, is distinction between individuals and processes. That is a to roll back the process effectively to where we were distinction without a difference, in my submission. We when the Bill was introduced in the House of Lords. are talking about fundamental changes to law and That is to say, the Government were happy with the Bill therefore it is right, at least for the foreseeable future, after they made the three post-Green Paper changes that the process of review and renewal by Parliament about national security, inquests and judicial review. I takes place. It is not a cumbersome process. It allows for think the Minister would agree with that. Indeed, the the provisions to be extended simply by a vote if there hon. Member for Cambridge was happy with the Bill at are no greater concerns. Only if the House had real that stage because he published his famous press release concerns would the matter be reopened and debated in welcoming it as a victory for open justice. At that stage full. I do not see it as bureaucratic and I do not think at least—let us treasure that moment—the Government that it is cumbersome. I do not see it as interfering with were on all fours with themselves and supported the Bill due process. If the Minister has concerns that the time as amended. But then amendments were made in the limits are too short, he is welcome to propose longer Lords, which were apparently accepted on Second Reading time limits. The principle of keeping such a fundamental in the Commons. We now have a wholesale change to change—something that so fundamentally attacks basic that approach. principles of civil law—under review is unarguable. The Government made those changes in a hurry and The final reason why I will press these new clauses is in a way that left a number of people confused—that the same reason why I urge the Government to reflect might have been their intention—about where they are on this matter between now and Report and Third going with the Bill. That is a recipe for bad legislation. Reading. I do not know whether they have a date in If it is bad legislation and there has been no opportunity mind for Report and Third Reading. I assume it will not for those issues to be aired, further advice needs to be be next week, so it will probably be after the short taken. After the Bill is passed, it needs to be regularly recess. After the hasty and rushed fashion in which reviewed. I say that also in relation to the Liberal Second Reading was dealt with before Christmas—the Democrats. It might be that, out of the generosity of his Government are obviously in terror of their lordships—who heart, the Minister has been jumping through hoops to knows what they are planning? I hope that it will be help his coalition partners. If so, given their voting after the recess, because I hope that they table a sunset behaviour on the amendments, he has a thankless child. clause and use that short period of time to review where I am genuinely confused. I hope that matters will be we are with the Bill. clarified when we discuss the Bill on Report and on The Joint Committee is discussing its further Third Reading, so we will know where the Liberal considerations. It may already have written to the Minister Democrats stand. We have had a good debate. We have in response to the Minister without Portfolio’s document all valued the contributions from the hon. Members for that was published last week. I think, given the close Cambridge and for Edinburgh, West, and the erudition attention the Joint Committee has paid to this issue, we and intellect that they have brought to our discussions. would value its view on the hasty but fundamental However, a little more clarity would have been sensible. changes that the Government have introduced in Committee. When the Minister responds, he might want The latest pronouncement from the hon. Member for to tell us whether he has already been approached by Cambridge stated: the Joint Committee. If he has not, I hope that he will “Mike Crockart and I just called a vote to remove secret courts solicit its views and take them on board. That will not from the Justice and Security Bill, in line with Conference’s be done quickly. motion. The Minister might also want to seek a judicial Despite highlighting in the debate that they supported closed proceedings in principle, Labour saw an opportunity to make review. Notwithstanding the quite correct attempts at mischief and eventually backed us. But due to DUP support for preventing me from quoting at length the views of the the Tories, we lost 10-9. Supreme Court, those views are relevant and no doubt the Minister is familiar with them. The judiciary has I’ll give a fuller update to everyone concerned soon.” taken a very close interest in this matter. Indeed, we I await that fuller update to see what new magic is would not be here were it not for the Supreme Court’s drawn down from the ether, and what other strange decision in the al-Rawi case. Therefore, its views should things are happening in this Room that I do not observe. also be solicited. It is nice that we are used to the virtual world now, but it 289 Public Bill Committee7 FEBRUARY 2013 Justice and Security Bill [Lords] 290 seems that we have a virtual world in the sense both of it James Brokenshire: Let it not be said that anything being online, and of it bearing no resemblance to the that the hon. Gentleman has said has ever been hasty or real world. rushed during this Committee, nor has the Government’s approach in considering the amendments. I shall concentrate 2.30 pm my comments on the new clauses in the group, rather than straying into a broader Second Reading-type debate. Dr Huppert: The hon. Gentleman keeps citing our My hon. Friend the Member for Cambridge exhorted tweets. I welcome him into the modern age. Yet again, me to come up with a constructive response. I hope he which bit of that tweet did he think was not correct? felt that my contributions in other debates were constructive, thoughtful and of assistance. I will do my best to Mr Slaughter: Let me tell the hon. Gentleman. I am consider carefully the points raised. not at all clear that what happened in Committee was a In essence, the amendments touch on three separate wholesale rejection of CMP procedure. However, if that issues: reporting, review and renewal. They have been were so, I look forward to the Liberal Democrats tabling structured in that manner. Members have sought to amendments on Report that mirror the words of the draw parallels with other legislation: we had annual motion passed at their conference or, at the very least, debates on control orders and the Terrorism Prevention that would fully, not partially, restore, the safeguards and Investigation Measures Act 2011 obviously provides introduced by the House of Lords. I am describing the certain measures. I caution right hon. and hon. Members disparity between what Liberal Democrats do and what against drawing a parallel with such legislation; the they say they do, but when they do something and want control orders were against particular individuals and it to mean whatever they think that it should mean, we were maintained over a period of time, whereas we are really are in a virtual world. talking about a court process—a litigation process. Direct parallels cannot therefore be drawn in the way that they perhaps have been. Mike Crockart (Edinburgh West) (LD): In the interests of accuracy, since the hon. Gentleman is so interested in I recognise the issues being flagged, but the points Twitter accounts, he tweeted yesterday: about certainty are germane. In the context of the Norwich Pharmacal jurisdiction, we seek to give assurance “Just finished Secret Courts Bill. Lib Dems voted with us that that deals with a case law process that has developed 7 times in Committee”. and it has been dealt with. Similarly, with CMPs, we are Was it not actually the case that it was the Opposition talking about litigation against the Government, for who voted with us a number of times? example, for which a CMP has been sought and obtained, and yet, if the amendments are taken at face value, Mr Slaughter: I think that even I am bored with this there would not be certainty in the litigation. Someone now. might initiate a CMP and a court case may be proceeding, but if it does not get renewed at the annual renewal, all the litigation is thrown into question. The Lord Commissioner of Her Majesty’s Treasury Although I understand the concern about how the (Mr David Evennett): “In conclusion”! provisions would be applied in practice, and therefore the need for further assurance and information and the Mr Slaughter: In conclusion, I hope that we have need to examine the provisions, there are particular been clear throughout our proceedings. We have a clearly challenges if we go down some sort of annual renewal stated position. It is a position that we shall maintain, route. Some of the debates we had on control orders and I look forward at least to having support for that became rather meaningless, because an annual debate position. I am grateful for the support of the hon. on a control order in that environment did not add Member for Cambridge for amendment 55. I will leave anything: it was almost perfunctory and did not apply him alone now, and let him continue the debate with the scrutiny in any event. Liberal Democrat party. Yes, in the example I gave about the TPIMs Act, we On the serious matter of presenting a Bill that is fit took a different approach, but I question the read-across for purpose, I hope that at the very least we will be able from that to another situation. I understand what one to sustain the amendments tabled by their lordships. It might characterise as the anxiety about how the measure has been an erudite and clear debate. Such amendments will operate in practice and the desire to look for further are supported by the senior judiciary in the country as assurance. well as the Joint Committee on Human Rights, and I hope that that will be the way forward. Dr Huppert: The Minister is right that the annual Even the Minister must have had relatively little time debates on control orders were in many cases fairly to get to grips with his amendments, nevertheless he has unsatisfactory, but does he agree that they ensured that done an admirable job. I hope that when he reflects on Parliament was aware that it was doing something them, he will think again about matters so that, when exceptional and abnormal and that that was one of the we and their lordships discuss the Bill again, harmony things that led to our coalition Government getting rid breaks out on all sides and we end up with something of control orders and replacing them with TPIMs, that protects national security. Insofar as it attacks which are a significantly lesser step? basic principles of English common law, it must have sufficient safeguards to ensure that closed material procedures are the exception to the rule and that, when James Brokenshire: My hon. Friend will remember they are used, they are so closely constrained that we the debates we had on the TPIMs Act and the points can be sure that they are the only option that is available. made in that environment about ensuring that there was 291 Public Bill CommitteeHOUSE OF COMMONS Justice and Security Bill [Lords] 292

[James Brokenshire] to keep material safe. There are, therefore, limitations on what can be achieved, although I acknowledge the an informed approach. All I am saying is that because point about sensitivity. we are talking about a different scenario, which involves The measures in clauses 14 and 15 remain the only litigation, court process and dealing with case law issues comprehensive safeguard against the serious damage about putting evidence into a court process, I do not that Norwich Pharmacal relief poses to our national think that there is a read-across when it comes to security and international relations, and they are designed sunsetting or renewal. That parallel cannot be drawn in to be a permanent solution to a problematic issue that the same way as it might be in other examples, albeit has arisen, not a short-term measure. Creating the that I understand the anxiety that underpins my hon. possibility that CMPs would cease to be available halfway Friend’s point and the point that the hon. Member for through a case in which the judge had decided that a Hammersmith raised. CMP was in the interests of the fair and effective The new clauses would, for example, require the administration of justice would undermine the judge’s Secretary of State to discretion, and it would be a recipe for chaos in the courts. “prepare a report about his exercise of the powers conferred on him, and the exercise of the powers and rights conferred on others.” 2.45 pm In the case of challenges to the Home Secretary’s We anticipate that CMPs will be used so infrequently decision to refuse someone British citizenship or to that there may not be any matters to report on a exclude them from the UK, we are dealing with a quarterly basis. The point has been raised that the new category of cases where the court has found that it is clauses are about the principle rather than the detail of potentially fairer to the claimant for there to be a CMP the proposals. There are existing mechanisms by which available. The expiry of the relevant clauses would the courts publish their open judgments, and the reduce fairness by removing the ability effectively to Government made an amendment in the Lords to ensure challenge those decisions. The proposals for annual that where an application is made under clause 6(1), renewal appear to be drawn from the Terrorism Prevention that fact must be reported to the other parties in the and Investigation Measures Act 2011. As I have said, I proceedings. The existing mechanisms of accountability think there are limitations and challenges to how that should be sufficient. read-across operates in practice. The new clauses also seek to add a review of the It is also important to note that the Constitution operation of the provisions in part 2: CMPs and Norwich Committee did not recommend a sunset clause in its Pharmacal. I have concerns about how practical such a report. It said that the House may wish to consider the proposal might be, given that the independent reviewer’s Bill being independently reviewed—not renewed—five remit has already been extended on several occasions. years after it comes into force. As previously explained, The incumbent, David Anderson QC, has indicated Bills are normally subject to review three to five years that there is a limit to how much one person can do, and after Royal Assent. The normal practice is that the we must not dilute the effectiveness of his role by Select Committee will have responsibility there. overburdening him. I have said that I will be constructive, and I recognise Not withstanding that, I recognise, value and appreciate the anxiety that has been expressed in certain quarters the contribution that David Anderson has made to the of this Committee and by those outside, so I am persuaded debate on CMPs. Nothing prevents him or any future that it would be helpful to provide reassurance on how post holder from being asked to provide ad-hoc reports the CMP provisions will be used. For the reasons that I on CMPs, Norwich Pharmacal proceedings or national have explained, I do not feel that the new clauses quite security material, or being invited by Parliament to give work. I therefore hope that my hon. Friend the Member his opinions. for Cambridge will feel minded to withdraw his new clause. I assure him that the Government will reflect on There are arguments over the benefits of reporting the subject of reporting and review and will return on and review requirements, but annual renewal would Report with a suitable amendment. have far more serious implications. New clause 2 would I recognise the points made, throughout our deliberations, provide that the Secretary of State’s powers under part 2 about information and how reviews should take place, would expire only a year after Royal Assent unless a and I respect them; they have been made not only by my statutory instrument was laid and approved by a resolution hon. Friends the Members for Cambridge and for of Parliament. The Government believe that new clause 2 Edinburgh West, but by the Opposition. I assure the would largely negate the benefit of part 2. In the case of Committee that the Government will reflect on this Norwich Pharmacal, we seek to address the key problem debate and others that have taken place in the House of how to reassure our intelligence-sharing partners and come forward on Report with alternative proposals. that we can protect the information that they share with us in confidence. A time-limited protection would fundamentally undermine one of the key objectives of Dr Huppert: I thank the Minister for everything he legislating, because we would not be able to provide the has said—in particular, his commitment that the necessary reassurance if we have legislated only for a Government will come up with appropriate amendments period that may be as short as one year. If the legislation on reporting and review, which is welcome and will does not provide sufficient clarity and assurance, our assuage me. I thank him for his concession. I look intelligence-sharing relationships risk deteriorating well forward to seeing those amendments, and I hope they beyond the point of the restrictions placed on us since will comply with the thrust of what the Joint Committee 2008, and our allies would doubt our continuing ability on Human Rights was trying to achieve. 293 Public Bill Committee7 FEBRUARY 2013 Justice and Security Bill [Lords] 294

As I have said, the exact time scales should be set on a New Clause 11 practical basis. I hope that we will have the chance to talk about some of that, and I hope that the Government’s EXPIRY AND RENEWAL amendments will be ones that we can entirely agree ‘(1) The Secretary of State’s powers under sections 6 to 11 of with. Given that the Minister will essentially be accepting this Act expire at the end of the period of one year beginning the principles of new clause 1, I do not feel the need to with the day on which this Act is passed. test the Committee’s view on it. (2) The Secretary of State may, by order made by statutory On new clause 2, which would create an annual instrument, provide that the Secretary of State’s powers under renewal, I understand and appreciate the Minister’s part 2 of this Act are not to expire at the time when they would concerns about the detail of how that could work. He is otherwise expire under subsection (1) or in accordance with an order under this subsection but are to continue in force after that right that there will need to be some provision to deal time for a period not exceeding one year. with an ongoing case, when one period ended. There is (3) An order under this section may not be made unless a draft also the issue of Norwich Pharmacal and whether one of it has been laid before Parliament and approved by a would want to offer protection over information that resolution of each House.’.—(Mr Slaughter.) had been provided up to the point of repeal or when the Brought up, and read the First time. powers ended. Question put, That the clause be read a Second time. The Minister is absolutely right to say that one could construct a far more detailed amendment that would The Committee divided: Ayes 9, Noes 9. achieve in detail what I want to achieve in principle Division No. 13] through new clause 2. I accept that he is reluctant to provide that, but I want to test the Committee’s opinion AYES on the principle of annual renewal. Alexander, Heidi Johnson, Diana I give a big thanks to the Minister for agreeing on Crockart, Mike Murphy, rh Paul reporting and review; that will make a significant difference Gilmore, Sheila to many people. I accept that he will not want to Hillier, Meg Phillipson, Bridget support the annual renewal, but I hope he will reflect on Huppert, Dr Julian Slaughter, Mr Andy a way forward, which I am sure his draftspeople will be able to provide. NOES The Government have had significantly over a month Brazier, Mr Julian Neill, Robert to look at the matter; I have had conversations with the Brokenshire, James Nokes, Caroline Minister without Portfolio. I will test the Committee’s Evans, Graham opinion on new clause 2, but I will not press new clause 1 Evennett, Mr David Scott, Mr Lee to a Division. I beg to ask leave to withdraw the motion. Lewis, Dr Julian Wright, Jeremy Clause, by leave, withdrawn. The Chair: As is the convention, I give my vote to the New Clause 2 Ayes. Question accordingly agreed to. ANNUAL RENEWAL ‘(1) The Secretary of State’s powers under Part 2 of this Act Question put, That the clause be added to the Bill. expire at the end of the period of one year beginning with the The Committee divided: Ayes 9, Noes 9. day on which this Act is passed. (2) The Secretary of State may, by order made by statutory Division No. 14] instrument, provide that the Secretary of State’s powers under Part 2 of this Act are not to expire at the time when they would AYES otherwise expire under subsection (1) or in accordance with an Alexander, Heidi Johnson, Diana order under this subsection but are to continue in force after that Crockart, Mike Murphy, rh Paul time for a period not exceeding one year. Gilmore, Sheila (3) An order under this section may not be made unless a draft Hillier, Meg Phillipson, Bridget of it has been laid before Parliament and approved by a Huppert, Dr Julian Slaughter, Mr Andy resolution of each House.’.—(Dr Huppert.) Brought up, and read the First time. NOES Question put, That the clause be read a Second time. Brazier, Mr Julian Neill, Robert The Committee divided: Ayes 2, Noes 9. Brokenshire, James Nokes, Caroline Division No. 12] Evans, Graham Evennett, Mr David Scott, Mr Lee AYES Lewis, Dr Julian Wright, Jeremy Crockart, Mike Huppert, Dr Julian The Chair: As is the convention, I give my vote to the NOES Noes. Brazier, Mr Julian Neill, Robert Question accordingly negatived. Brokenshire, James Nokes, Caroline Evans, Graham New Clause 12 Evennett, Mr David Scott, Mr Lee Lewis, Dr Julian Wright, Jeremy REPORTING AND REVIEW ‘(1) As soon as reasonably practicable after the end of every Question accordingly negatived. three month period the Secretary of State must— 295 Public Bill CommitteeHOUSE OF COMMONS Justice and Security Bill [Lords] 296

(a) prepare a report about his exercise of the powers I also thank my hon. Friend the Member for Bexleyheath conferred on him, and the exercise of the powers and and Crayford; as a Whip, he has shown steely nerve and rights conferred on others, under clauses 6 to 11 of fingertip control, which has been absolutely masterful. this Act during that period; and I am also grateful for the sterling support provided by (b) lay a copy of that report before Parliament. my hon. Friend the Member for Ilford North, who has (2) The person appointed by the Secretary of State to review acted as PPS, and for the additional support provided the operation of the provision of the Terrorism Act 2000 and by my hon. Friend the Member for Weaver Vale. part 1 of the Terrorism Act 2006 must also carry out an annual review of the operation of the provisions of this part of this I thank the Opposition for the tone and manner in Act.’.—(Mr Slaughter.) which they have challenged and scrutinised the Bill. Bill Brought up, and read the First time. Committees do not necessarily always have that tone, but although we have disagreed on a number of points, the analysis and detailed approach of the Opposition Mr Slaughter: I beg to move, That the clause be read Front-Bench team and other Opposition Committee a Second time. Given the helpful comments from the members have aided and assisted our consideration. Minister and in light of what the hon. Member for I thank the Bill team and parliamentary counsel for Cambridge has said, I beg to ask leave to withdraw the their expert input, as well as for being able to read my motion. handwritten scribbles—a task that I know has at times Clause, by leave, withdrawn. been testing. I thank you, Mr Crausby, and your co-Chair, Mr Gray, for your sterling and clear chairing of our sessions. I also thank the Clerks, the Hansard reporters James Brokenshire: On a point of order, Mr Crausby. and the Doorkeepers for their contribution to ensuring May I thank you and your co-Chair, Mr Gray, for your the smooth running of our proceedings. expert chairmanship of the Committee? I am sure we The Bill has been improved by this Committee’s can all agree that the Bill has been well scrutinised by scrutiny. The Government have reflected on proceedings the Committee, and that we have had some informative in the other place and will reflect on some of the points and useful debates. The fact that we have done so in a made in the Committee’s deliberations between now timely and efficient fashion that has enabled us to finish and Report. Ultimately, this important Bill will improve early is a credit to our two Chairmen, to the usual parliamentary and independent oversight of the security channels and to all members of the Committee. and intelligence agencies, protect our highly important We have certainly learned some interesting new facts intelligence-sharing relationships and allow more cases and been referred to some interesting new concepts. involving intelligence to be heard. Two immediately spring to mind. I am not sure that all The Bill is about more justice, not less, and I look of us would necessarily have been fully familiar with the forward to underlining that core point during the remaining Osmotherly rules at the outset—or, indeed, had a detailed stages of our consideration and as the Bill progresses to association with or affection for the Wiley balancing the Floor of the House. test. I will leave it to the passage of time—or perhaps the Hansard reporters—to tell whether, in due course, our considerations will lead to any Brokenshire requirements, rights and certificates, any Johnson amendments, or, 3pm dare I say it, any Slaughter quotations. Mr Slaughter: Further to that point of order, Mr Crausby. Our debates have been informed by the expert knowledge I echo everything that the Minister said in paying around the Committee Room. When we debated the tribute to those who have contributed to making this a issue of oversight of the Intelligence and Security good Committee—beginning with you and your co-Chair, Committee, the contributions of my hon. Friend the Mr Gray, who have been firm but fair throughout the Member for New Forest East and of the right hon. proceedings. I know that you and Mr Gray would have Member for Torfaen were invaluable. They have greatly loved to hear more of what the nine justices said in the assisted the Committee by enabling us to consider a Supreme Court case of al-Rawi, but we had to curtail number of points raised by the Bill with the benefit of that. I know that having had a taster, all Committee their outside experience, knowledge and input. I am members will rush away to read the full judgment. quite clear that our consideration has been added to Having mildly embarrassed the Clerk earlier, I do not and aided as a result of their contributions. want to do so again, but I thank him for his support in I am also grateful for the legal input from Government the run-up to the Bill, as well as during our proceedings. and Opposition Committee members and the legal expertise It is amazing how much one forgets between Bills about that has been shown. A number of the issues we have what procedures need to be followed. As always, we considered have been legal points about how courts have had an absolutely sterling effort from everybody operate and the jurisprudence that has been developed. who has helped, including the Doorkeepers and Committee We also had input from a member of the Joint Committee staff. It has been a formidable effort. on Human Rights, to ensure that that aspect of our I have sometimes found previously—I am sure it has consideration was properly informed. had nothing to do with me—that when I thank Ministers I thank my hon. Friends for all the support they have or they thank me, it is the most difficult part of the provided to me and my hon. Friend the Member for Committee. However, that is far from being the case on Kenilworth and Southam, whom I congratulate on his this occasion. I can say genuinely that having two first speaking part on a Bill as a Minister—before he Ministers who are so emollient in how they say things, exits Committee Room right. I thank him for his support. even if not in what they say, is a refreshing experience. I I am sure that his first outing in this particular context thank all Government Committee members, including will not be his last. the Liberal Democrats, who are part of the Government, 297 Public Bill Committee7 FEBRUARY 2013 Justice and Security Bill [Lords] 298 we must remember—or they must remember, or somebody My hon. Friends have asked me also to mention the must remember. We have heard an interesting range of Clerk of the Commons for his assistance—the letter opinions. that we had in the first part of our discussions. When my hon. Friend the Member for Kingston I think I have dealt with all matters. If I have forgotten upon Hull North was dealing with the Intelligence and anybody, I apologise. We have had a good Committee. Security Committee provisions, I thought at one stage that she was getting it not in stereo but five ways. She Dr Huppert: Further to that point of order, Mr Crausby. was getting a Front-Bench Government view, a Liberal I add my thanks and those of my hon. Friend the Democrat view, a Back-Bench Government view, a view Member for Edinburgh West to you, Mr Gray and all from the ISC in stereo from both sides and occasionally the staff involved: the Bill team, Hansard, the Doorkeepers other views as well. She dealt with them admirably. As and so forth. It has been an entertaining exercise. I will the privilege of making the final remarks falls to me, I leave it to others to decide whether this Bill Committee thank her in particular for everything that she has done has been a fair and effective administration of legislation on this Committee. I am sure that we can all learn from and whether we balanced our Wiley correctly. It has her concision, accuracy and lack of repetition; I am been an enjoyable experience. referring, of course, to Members generally. I thank the two Ministers for all their comments, I also thank our Whip, my hon. Friend the Member particularly the hon. Member for Old Bexley and Sidcup for Lewisham East, who with great efficiency and charm for actually giving way on one point, which was satisfying has kept us in order and who now just wants me to shut after much frustration. I also thank the Whip, the hon. up, because we both want to get down to the Chamber Member for Bexleyheath and Crayford, for how he has as soon as possible to talk about the closure of our A conducted things; it has been a pleasure working at and E departments. I thank all Members, particularly least on the same side of the room as him on a number the hon. Members for New Forest East and my right of occasions. I thank Opposition Committee members hon. Friend the Member for Torfaen, for their expertise, for backing us on some, if not all, of our proposals. not just in terms of their experience of the ISC but It has been a great pleasure to learn so much about generally on security and other matters. procedures in the event of a tie. I am glad that we have Although this Committee has been relatively short, it all had that opportunity. It has also been a great pleasure has been a case of standing on the shoulders of giants. to have the chance to educate the hon. Member for We have had a large amount of expert opinion to rely Hammersmith on the nature of a coalition. Two parties on from the Joint Committee and other Committees of can work together despite not agreeing on absolutely the House, from the higher courts of this country and every issue. The Opposition will know that the coalition from expert Members in this House and the other place. between Blair and Brown had some tension as well. I The Bill is not over yet; that is not a threat. We will thank you again, Mr Crausby, for your chairmanship. see what happens in the remaining stages here and in We will see how the Bill proceeds. the other place, but I think that we can go away comforted Bill, as amended, to be reported. by the fact that we have explored the issues in full and have, in a reasoned way, contributed, I hope, to making 3.6 pm the Bill better when it finally reaches the statute book. Committee rose.