My Lords, I have a speaking note for this amendment and I will not take the risk of moving it formally because it adds a new clause to the Bill. I hope noble Lords will forgive me if I explain this quite lengthy and complex clause, although it is simple enough in its intention. It would allow intercept material to be adduced in closed material procedures in national security cases in employment tribunals.
Intercept material is excluded from legal proceedings under Section 17 of the Regulation of Investigatory Powers Act 2000, but an exception already applies in limited circumstances by virtue of Section 18 of that Act. The section lists those specialised proceedings, including the Special Immigration Appeals Commission and cases relating to terrorism prevention and investigation measures proceedings, where intercept material can be used in the closed part of the proceedings. It is the Government’s objective to find a practical way to allow the use of intercept evidence in court. Section 18 does not currently include employment tribunals, and the amendment seeks to change this. The change would enhance the effectiveness and fairness of employment tribunals, it would be consistent with the objectives of this Bill and wider government policy, and it will help protect national security. Perhaps I may take these issues in turn.
The first is consistency with the Bill and its effectiveness. By allowing intercept material to be adduced in a limited number of cases where such material may be available, the amendment would enable employers to defend claims, for example, for unfair dismissal with a broader set of evidence than is currently available. The ability to adduce intercept material in CMPs is consistent with the wider provisions of this Bill, in particular paragraph 9 of Schedule 2, which includes a provision for an amendment to Section 18 of the Regulation of Investigatory Powers Act to allow for intercept material to be admitted in any Clause 6 proceedings. This further amendment would bring employment tribunals in line with the small number of specialised civil proceedings in which the disclosure of intercept product is already permissible.
Perhaps I can now address the question of operational necessity. This amendment does not represent an academic exercise. There will be cases before employment tribunals where an employer is not properly equipped to defend its actions as it is unable to adduce the full breadth of material available. For example, there will be cases where the Government are defending a claim for unfair dismissal following the removal of a former employee’s vetting clearance. Currently, if the vetting is based on intercept material, it would not be possible to adduce that material in support of the vetting decision. The national security vetting system is designed to provide an assurance that those with access to sensitive information do not pose a security risk. It is very important that an assessment of the risk is made on the basis of all the relevant material, regardless of the source.
Where a decision is made to withdraw vetting clearance it is important to the integrity of the system that the decision can be maintained and is capable of being defended from legal challenge. Where intercept product or intelligence based on intercept is integral to the decision, its unavailability in employment tribunal findings could result in employers wrongly losing their case and an adverse impact on the national vetting system. Furthermore, departments may become reluctant to rely on information provided by the security and intelligence agencies for fear of not being able to defend decisions taken. It is also important that those bringing proceedings in employment tribunals can be confident that the tribunal has access to all the information on which a decision was made so that decisions can be properly examined.
I believe that the widening of the number of settings for a very small number of important cases in which intercept material can be considered should be welcome. I hope that noble Lords will see fit to support this important amendment. I beg to move.