The Justice and Security Bill 2013 is now awaiting Royal Assent and the Pariament website has not yet published the consolidated final text of the Act online.
However it is possible to see amendments which have been passed:
"secret courts" Closed Material Procedure
The controversial "secret courts" Closed Material Procedure stuff has been passed and has successfully distracted the opposition from properly scrutinising the other bits of the Bill in any great detail.
Reading some of the coverage of the "secrets courts" controversy, one might have been led to believe that the existing system is somehow open and accessible to all, especially online,
The truth is that there is a vast amount of deliberate secrecy and sheer incompetence (espcially online) which effectively hides much of the supposedly "open" justice system from the public, only giving the (rich) privileged few access to some, but not all of it.
Try using the HM Courts & Tribunal Service website to try to work out which cases are actually being heard next week or next month and in exactly which Court room - impossible.
Try (in vain) to find any Court Transcripts of cases officially online
Spy Blog does not think that Closed Material Procedure will make much difference on its own - it is in addition to Public Interest Immunity certificates and in camera court proceedings, it does not replace them.
Nobbling of Norwich Pharmacal orders
2) Of much more interest to the Whitehall securocrats is the nobbling of Norwich Pharmacal orders, which is what gave the legal team in the case of
Binyam Mohamed such leverage and embarassed various MI6 managers and officials in Court (with their identities etc. being kept secret, under exisiting legislation and procedures)
Given what could be revealed in the torture complicity cases from Libya, Iraq, Afganistan etc. or if it ever gets re-started the currently suppressed Detainee Inquiry, the new section 14 Disclosure proceedings and section and section 15 Review of certification are likely to be used to cover up historical political enbarassment rather than to protect actual, up to date tactical operational information.
There has been barely any mention of this in the media or in Parliament.
Freedom of Information Act to apply to the Intelligence and Security Committee
One welcome amendment is the one to Schedule 2 one which amends the Freedom of Informationm Act 2000, to allow Freedom of Information Act requests to the Intelligence and Security Committee itself, but don't get too excited about this, no real secrets are likely to be disclosed.
Obviusly they will bat away any request for material supplied by the Intelligence Agencies themsleves, under the standard FOIA exemptions, but, it will be interesting to get some figures about the workings of the Committee itself and about the number of complaints, or investigations and any delays etc.
There will also be FOIA requests about the how much public money the ISC spends and on what.
However, there seems to be another control freak power within this legislation which extends the power of the ISC to refuse FOIA requests.
ISC: Publication of information received in private
Inserted into Schedule 1:
"Publication of information received in private
(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.
if the ISC considers that there is a risk that the person will publish it. is puzzling and appears to set up a conflict with spirit of the Freedom of Information Act, since every FOIA disclosure is at "risk" of being published
This could be used to refuse any FOIA requests, no matter how innocuous, because of the FOIA exemption section 44 (a) Prohibition of disclosure because this would be "prohibited by or under any enactment," i.e. this Act itself
This could be applied even to historical information with no current tactical operational value e.g. correspondence with dead dictators which has not been supplied directly by the intelligence agencies themselves etc.
It would also allow the ISC to simply refuse to give any meaningful statements to the press or media - i.e. Leveson Inquiry media censorship enacted !
ISC: some legal protection for Witnesses, but not proper Whistleblower protection
Also inserted at the end of Schedule 1 is:
"Protection for witnesses
(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."
All well and good, so far as it goes.
This would prevent evidence from say the former head of MI6 who was in charge when
an allegation of torture complicity was made, from being used in court from now being sued or prosecuted, on the basis of what he says to the ISC.
However this is insufficient on its own, to encourage any serving intelligence officers from reporting potential or actual malpractice or illegality, from contacting the ISC for them to investigate.
What use is this "witness protection" if there are no actual criminal or civil or disciplinary proceedings, but a whistleblower is identified to the intelligence services and they revoke his or her security clearance or change his or her duties to a less trusted role, not because of what the whistleblower said but because of the fact that they said anything at all to an external body i.e. they they broke the culture of omertà
There may or may not be a resultant Employment Tribunal case, but the whistleblower's career within the intelligence agency would effectively be over.
What is true for actual whistleblowers, also applies to potential whistleblowers who have not actually provided any evidence to the ISC yet, but who have tried to contact them "anonymously".
What is really required is protection by the Intelligence and Security Committee of the identities of any internal whistleblowers
c.f. Spy Blog letter to the Detainee Inquiry re: lack of whistleblower anonymity protection and immunity from prosecution
As there should have been with the now defunct Detainee Inquiry, there should also be an explicit prohibition against Communications Data snooping or other Directed Surveillance ("stakeouts, following people and vehicles, photographing meetings) or Property Interference (planting electonic audio / video "probes" or bugs or GPS tracking devices) techniques or the use of Covert Human Intelligence Source informers or undercover operativess, aimed at the members of the Intelligence and Security Committee, their staff and familes, or, more likely their mobile phones, telephon lines, internet connections, email accounts or their physical offices.
Actual Interception of communications, in theory requires a Secretary of State to authorise the RIPA warrant, but snooping on Communications Data or other surveillance techniques for "national security" or to "prevent leaks of sensitive information" does not. The temptation for an intelligence agency as a whole or for powerful officials within such an agency, with something to hide which might affect their own careers, is enormous.
The Attorney General, the Cabinet Secretary and the heads of each of the intelligence agencies should issue binding orders or "guidance" on their subordinates along the lines of what was actually produuced for the Detainee Inquiry, which should also apply to any actual or potential witnesses or whistleblowers in contact with the Intelligence and Security Committee
c.f. Witness but not whistleblower protection for the Detainee Inquiry into torture complicity of MI5, SIS, GCHQ