The Justice and Security Green Paper - Human Rights Joint Committee

The Justice and Security Green Paper - Human Rights Joint Committee Contents

5 Reforming the courts' Norwich Pharmacal jurisdiction

Evidence of the need for change

151. The Green Paper says that in the aftermath of the court-ordered disclosure in the Binyam Mohamed case, the Government has received "clear signals" that, if it is unable to safeguard material shared by foreign partners, it can expect the depth and breadth of sensitive material shared with it to reduce significantly.[74] It also asserts that, although there is no suggestion that key 'threat to life' information would not be shared, there is already evidence that the flow of sensitive material has been affected.

152. It is extremely difficult for a parliamentary committee such as ours to subject to meaningful scrutiny such assertions about the impact of particular court cases on the flow of intelligence. Without access to the relevant personnel or intelligence information, there is no way of testing what is said. We find ourselves wholly dependent in this respect on the Independent Reviewer of Terrorism Legislation, who does enjoy such access and who has given evidence to us about the answers he has received to the questions he has put in order to test the Government's assertions. He is broadly satisfied that the Green Paper accurately sets out the position in this respect, "at least where the US is concerned." He reports that, having questioned people in a number of departments and agencies, some of them in direct contact with counterparts in the US, he is in "no doubt" that the suggestion in the Green Paper is correct.[75] In his supplementary memorandum, he reports the results of further inquiries that he has made of the Government and the Intelligence Agencies on this question, following the expression of scepticism about the Government's claims.

153. The results of the Independent Reviewer's further inquiries confirmed him in his view that there has been an actual reduction in the flow of intelligence from the US as a result of the Binyam Mohamed case. He reports specific examples of operational impact on the flow of intelligence and a genuine concern that the UK was 'on probation' as far as its ability to safeguard secret information is concerned.

The realisation that secret US material could in principle be ordered to be disclosed by an English court, notwithstanding the control principle, and that the Government had no power to prevent this from happening, appears to have come as a genuine shock to many influential people in America.[76]

154. The only evidence available to us on the question of whether the national security concern is a real and practical concern is that of the Independent Reviewer on the question of whether the national security concern is a real and practical concern. We therefore proceed on the basis that there exists a clear perception, on the part of the US authorities at least, that the Binyam Mohamed litigation calls into question the ability of the UK Government to prevent the disclosure of sensitive material provided by its intelligence partners, and that this has caused a reduction in the amount of intelligence information that is shared with the UK.

155. Whether this evidence justifies changing the law, however, depends on the answer to a further question: is the perception of the US authorities a misperception, and, if so, should the law be changed in order to address a misperception on the part of a powerful ally? Both the Government and the Independent Reviewer are clear in their answer to this question. The Secretary of State said in evidence.[77]

I am not going to enter into the controversy about Binyam Mohamed. Those who defend the decision point to the court as having given as its reason that this was already in the public domain in the United States. My understanding [...] is the Americans do not agree with that [...] We cannot control them. No Minister can get the Americans to come off that [...] Binyam Mohamed has unsettled them. It is too late to go back on the merits of that case; that is all water under the bridge, but since the Binyam Mohamed case, there is real concern about whether we are going to have the full-hearted co-operation with the Americans we do need to provide proper security to our population and to our interests.

The Independent Reviewer takes a similar approach: in his view, however well-founded the arguments that the US perception is a misperception,

they are in a sense beside the point [...] The wish for a species of guarantee as the price of intelligence-sharing is a wholly understandable one. In such a world, perception counts for a great deal—and justly or otherwise, Binyam Mohamed has in some US agencies created a perception of enhanced legal risk associated with the sharing of intelligence.[78]

156. Others are less prepared to accept that addressing the perceptions of the Americans can be a legitimate objective for legislation. The former Director of Public Prosecutions, Lord Macdonald of River Glaven QC, for example, said on the Today Programme on BBC Radio 4: "I don't think we should allow foreign intelligence agencies to dictate how we organise our justice system." Having recently examined in some detail the unfortunate history of the US-UK extradition treaty, and the legislation designed to give it effect,[79] we have some sympathy with the view that the UK ought not to be too hasty to legislate at the behest of its more powerful ally, especially where the pressure to act is rooted in a misunderstanding of the legal position. To the extent that the position of the US authorities is based on a misperception about the current legal position in the UK, we do not consider this to be "beside the point", or "water under the bridge", we believe that the misperception should be directly and actively addressed. To this end we remind Parliament of the ways in which the UK courts in practice give due deference to national security claims by the Executive[80] and ensure that sensitive material is not disclosed in a way which damages national security or which underestimates the importance of the control principle.[81] We also draw attention to the fact that, contrary to some perceptions, the US doctrine of State Secret Privilege is not an absolute principle and the US itself may therefore be unable to guarantee the confidentiality of intelligence it receives from our own agencies.[82]

157. For many witnesses to our inquiry, it is this strong record of our courts in ensuring that information is not disclosed which damages national security that makes reform of the Norwich Pharmacal jurisdiction unnecessary. They argued that there is no need to introduce any restrictions on that jurisdiction, because the courts will always be extremely deferential to claims by the Government that disclosure will damage national security, as the Binyam Mohamed case itself demonstrates.[83] This is not, however, our view. At the same time as believing it to be necessary to address the US misperception, we also accept that there is a case for legislating to provide greater legal certainty about the application of the Norwich Pharmacal principles to national security sensitive material. Although the courts' power to order disclosure of material by a party mixed up in another's wrongdoing is long established, we accept that its exercise in the context of security-sensitive information in the possession of the Government in Binyam Mohamed represents a novel application of the jurisdiction. We also accept that Norwich Pharmacal applications constitute a special category of civil claim in which the very purpose of the application is to obtain an order of disclosure against the opposing party, and that such claims therefore could carry a heightened risk of disclosure of material which is damaging to national security.

158. For these reasons, we agree with the Independent Reviewer that it is understandable that the Binyam Mohamed case has caused nervousness on the part of international partners who share intelligence with the UK about the ability of the Government to prevent its further disclosure.[84] The apparent perception of the US authorities that UK courts cannot be relied upon to prevent disclosures of intelligence shared with the UK by US intelligence, however ill-founded, is evidence of the existence of uncertainty on the part of the UK's most significant intelligence partner. We therefore accept that the Government's aim in seeking to amend the law to provide reassurance to its intelligence partners is a legitimate aim, and the question is what would be a proportionate way to achieve that aim. We suggest below that a proportionate response would be for legislation to provide an improved and clearer legal framework for addressing the application of the courts' Norwich Pharmacal jurisdiction to national security sensitive information.

159. We emphasise the importance of rigour in scrutinising the evidential basis for the Government's assertions about the need for the proposals. In relation to the proposed reform of the Norwich Pharmacal jurisdiction, for example, there are hints in Government statements that unless action is taken now the existence of the unreformed Norwich Pharmacal jurisdiction will attract applications from people overseas which are really no more than fishing expeditions for evidence to support a possible claim. At one point, for example, the Green Paper states that without legislation to reform the Norwich Pharmacal jurisdiction "the UK courts will remain a forum of choice for speculative applicants."[85] The Home Office Minister for Security and Counter Terrorism, James Brokenshire MP, similarly implied in oral evidence that "there is some sort of forum shopping that may be taking place" since the Binyam Mohamed judgment, and that there is a need to take action to guard against this. We have been furnished with no evidence by the Government that as a result of the Binyam Mohamed case UK courts have become a forum of choice for speculative applicants, nor have we been directed to any case that is considered by the Government to be an example of forum shopping. Indeed, in the recent cases of which we are aware in which Norwich Pharmacal applications for disclosure have been made, permission has been granted to apply for judicial review of the Government's refusal to disclose the material sought, suggesting that there is at least an arguable case that the UK has in some way, whether innocently or not, become mixed up in wrongdoing of a serious kind.[86]

160. The Government says that its aim in this area is to develop an improved legal framework that fits coherently with the procedures for managing sensitive information in cases heard in our own courts and with the established common law principles of PII and, above all, that avoids the development of new routes of disclosure that could fundamentally undermine the UK's national security co-operation with key partners.[87] We consider in detail below what legislative responses are in our view capable of being justified by the evidence we have considered above.

No absolute protection for the control principle

161. An absolute exemption, resulting in the automatic ouster of the court's jurisdiction to order disclosure, cannot in our view be considered to be consistent with the rule of law. The Government acknowledges in its Green Paper that "the cases in which these issues have arisen have often occurred in circumstances where individuals are facing severe consequences for their liberty."[88] In fact, often the individuals seeking the disclosure are fighting not only for their liberty but for their life. Binyam Mohamed himself was facing the possibility of the death penalty in the US when he first sought disclosure of the material in the possession of the UK Government which would help him to contest the charge. Similarly, in two of the recent cases in which Norwich Pharmacal applications for disclosure have been made it has been by individuals facing the possibility of the death penalty in Uganda.[89]

162. In our view, this fact alone means that an absolute statutory exemption from disclosure for material of a certain class can never be proportionate. It would mean that our legal framework admits of the possibility of individuals facing the death penalty being unable to obtain disclosure of material which is central to their defence, without any judicial balancing of the gravity of the harm likely to be done to the individual on the one hand and the degree of risk to national security on the other. We do not think our legal framework should countenance that possibility. This aspect of the Government's proposal in relation to the courts' Norwich Pharmacal jurisdiction appears to be motivated by a desire to be able to give a cast-iron guarantee to the Americans that any intelligence shared with the UK will never be disclosed without the Americans' consent. As the Secretary of State said to us in evidence:[90]

I would like—or not me, because I am not directly involved—but those who protect this country's safety would like to be able to tell the Americans that they can be absolutely assured that this material would not get into the public domain by either judicial process or any other process.

163. The Foreign Secretary showed a similar understanding of the control principle in his speech about the role of secret intelligence in foreign policy, Securing our future, on 16 November 2011 in which he described the control principle as "a strict rule of intelligence sharing whereby any further use or disclosure of intelligence requires the agreement of the Agency that provided it in the first place. If we cannot uphold the control principle and others do not share information with us, the very real risk is that our security will be jeopardised."[91] In other words, the Government appears to be proceeding on the basis that the control principle is absolute and that nothing short of giving that absolute principle legal effect in the UK will satisfy the Americans.

164. In fact, the control principle can never be absolute in a legal system committed to the rule of law and this much was acknowledged by both the UK and the US Governments during the Binyam Mohamed litigation. As the Master of the Rolls, Lord Neuberger, pointed out in his judgment in the Court of Appeal in that case, neither the UK Foreign Secretary nor the US Secretary of State had in fact proceeded on the erroneous assumption that the principle of control of intelligence was inviolable. He said:[92]

in the first certificate, the Foreign Secretary made it clear that he may well have been prepared to order the release of the 42 documents to Mr Mohamed's US lawyers, if the threatened charges were brought and the US authorities did not supply them with the documents [...] More importantly, it does not seem to me realistic to think that either the Foreign Secretary or the Secretary of State can conceivably have believed that there was an absolute rule that shared intelligence could never, in any circumstances, be revealed without the consent of the State which supplied it. As stated in Mr Mohamed's submissions on this appeal, "the US Government is well aware that independent courts can and will in appropriate cases disclose foreign intelligence material where it is in the public interest [...] to do so", and this is demonstrated by a number of cases in the US and other courts. In other words, the court's view, that the Secretary of State and the Foreign Secretary misunderstood the control principle, is wrong; I believe that the view was based on an over-literalistic interpretation of what the Foreign Secretary said in one or two places in the certificates and what the Secretary of State is recorded as saying on 12th March 2009.

165. The Government says in the Green Paper that it "seeks to find solutions that improve the current arrangements while upholding the Government's commitment to the rule of law."[93] In our view, a proposal to legislate to make the control principle absolute is not consistent with that commitment.

The reform options

166. We accepted above that the Government had made the case for some legislative reform of the Norwich Pharmacal jurisdiction. We now consider the range of possible legislative responses and test each of them for their proportionality to the legitimate objective which we accept has been shown to exist.

167. The Independent Reviewer also accepts that the Government has made out a case for restricting the novel application of the Norwich Pharmacal jurisdiction in the national security context. He supports restricting the courts' jurisdiction but points out that any such restriction should however be proportionate, that is, no more extensive than is necessary for its legitimate purpose. He does not, however, suggest what such a proportionate limitation on the Norwich Pharmacal principle might look like.

168. The Green Paper considers four options in relation to the courts' Norwich Pharmacal jurisdiction. We consider each of these in turn before suggesting what we consider to be the legislative response most clearly justified by the evidence.

OPTION (1): REMOVE THE JURISDICTION IN CASES AGAINST PUBLIC BODIES

169. The most radical option considered by the Green Paper is legislating to remove altogether the courts' jurisdiction to hear Norwich Pharmacal applications for disclosure against any public body, including Government departments, and leave individuals to their statutory rights of access to information held by public authorities under the Data Protection Act 1998 and the Freedom of Information Act 2000 (both of which include exemptions for national security material).[94]

170. While this option would meet the Government's objective of protecting sensitive Government material from disclosure, the Government itself in the Green Paper accepts that abolishing the courts' Norwich Pharmacal jurisdiction in cases against public bodies would be a disproportionate response to the problem it is sought to address. It would go too far because it would prevent Norwich Pharmacal applications against public bodies in cases in which the material it is sought to have disclosed is not sensitive. As the Government acknowledges, there are situations in which the operation of the Norwich Pharmacal regime against a public authority raises no real sensitive issues.

171. We welcome the Government's rigorous proportionality analysis in relation to the option of removing the courts' jurisdiction to order Norwich Pharmacal disclosure against all public bodies. We agree with both the conclusion of the Government that it would be a disproportionate response to the problem of preventing inappropriate disclosure of national security-sensitive material in Norwich Pharmacal claims, and that of the Independent Reviewer of Terrorism Legislation who considers that such a legislative response "would appear manifestly disproportionate".[95]

OPTION (2): REMOVE THE JURISDICTION IN CASES WHERE DISCLOSURE HARMS THE PUBLIC INTEREST

172. The second option considered in the Green Paper is to legislate to remove the jurisdiction of the courts to hear Norwich Pharmacal applications where disclosure of the material in question would cause damage to the public interest.[96]

173. This option could take a number of different forms. As proposed in the Green Paper, it is envisaged that it would work by a combination of an absolute statutory exemption from disclosure and an exemption based on a ministerial certificate which could be challenged by way of judicial review.

174. The absolute statutory exemption from disclosure, it is proposed, would apply to "material held by or originated from one of the Agencies". The effect would be that any Norwich Pharmacal application would be dismissed by the court if the Government invoked the statutory exemption on the basis that the material in question is "Agency-held or originated".

175. The exemption from disclosure based on ministerial certificates, it is proposed, would apply to non-Agency government material where disclosure would cause damage to the public interest. The effect of a ministerial certificate saying that disclosure of the material in question would cause damage to the public interest would be to exempt the material from disclosure and so bring the Norwich Pharmacal proceedings to an end, unless the claimant sought to challenge the Secretary of State's decision to certify, which they would be able to do "on judicial review principles."

176. This second option, it appears from the Green Paper, is the Government's preferred option.[97] It regards it as more proportionate than the first option because it is more focused, being tailored to problematic Norwich Pharmacal applications where disclosure would cause damage to national security or another public interest, leaving the rest of the Norwich Pharmacal jurisdiction unaffected.

177. It is true that this option would leave the courts' Norwich Pharmacal jurisdiction untouched in relation to other applications against public bodies which do not give rise to the risk of disclosure of material damaging to national security, and in that sense it would be a more targeted legislative response than the first option considered above. In our view, however, removing the courts' Norwich Pharmacal jurisdiction in cases where disclosure would harm the public interest would still be a disproportionate response to the problem it is sought to address, for a number of reasons.

178. First, an absolute statutory exemption for all material held by or originating from one of the Agencies, without reference to its sensitivity, is an extraordinarily broad class exemption from disclosure. It appears to assume that the disclosure of any Agency material is inherently damaging to national security. We agree with the Independent Reviewer when he describes such a blanket exclusion for all material held by or originating from one of the Agencies, regardless of its sensitivity, as "manifestly disproportionate."[98]

179. Second, even if the absolute statutory exemption from disclosure were confined to "sensitive material" held by or originated from one of the Agencies, or even "national security-sensitive material", an absolute exemption, resulting in the automatic ouster of the court's jurisdiction to order disclosure, cannot in our view be considered to be consistent with the rule of law for the reasons we have set out above.

180. Third, a system of exemptions from disclosure based on ministerial certificates which could be challenged only "on judicial review principles" is also problematic. Unlike an application by a minister to a court for exemption from disclosure on PII grounds, the balancing decision, taking into account all the relevant public interests when deciding whether or not there should be disclosure, would not be a matter for the court itself, but a matter for the Secretary of State subject to the court's much narrower supervisory review.[99]

181. Fourth, providing for exemptions from Norwich Pharmacal disclosure when it would cause harm to "the public interest" is disproportionate because it goes further than necessary to achieve the Government's legitimate objective, which is to reduce the risk of disclosures which damage national security and to provide greater legal certainty to intelligence partners who share national security-sensitive material. To be proportionate to this objective, any legislation should be confined to clarifying the application of Norwich Pharmacal principles to such national security-sensitive material.

OPTION (3): PUT NORWICH PHARMACAL TEST ON A STATUTORY FOOTING

182. The third option for reforming the Norwich Pharmacal jurisdiction which is considered in the Green Paper is to legislate to provide a more detailed statutory definition of what is required to satisfy the test for an application for Norwich Pharmacal disclosure.[100]

183. The Norwich Pharmacal jurisdiction is a judicial creation and the test which a claimant for disclosure must satisfy to succeed in their claim has to be distilled from the case-law. It comprises five main elements:

There must be arguable wrong doing on the part of a third party
The defendant must be "mixed up" in that arguable wrongdoing, however innocently
There must be no other route by which the claimant can obtain the information
The application should not be used for wide-ranging disclosure or evidence-gathering and must be strictly confined to necessary information
The court must be satisfied that it should exercise discretion to make the order sought.

184. According to the Green Paper, the Government sees benefit in providing the court with "a tighter framework" when considering the various elements of the Norwich Pharmacal test, and considers that defining the test in legislation should lead to greater certainty about the scope of the jurisdiction.

185. The Independent Reviewer regards this option of providing a statutory definition of the Norwich Pharmacal test as unobjectionable but finds it difficult to see how it would meet the objective of reassuring intelligence partners.[101]

186. We consider that placing the Norwich Pharmacal jurisdiction on a statutory footing, with a detailed statutory definition of the test to be satisfied, would serve to increase legal certainty for both courts exercising the jurisdiction and intelligence partners. It would therefore serve the legitimate objective of reducing the risk of disclosures which are damaging to national security and providing reassurance on that score for nervous international partners. In our view, however, redefining the entire Norwich Pharmacal jurisdiction in this way would also be a disproportionate response to the specific problem which has arisen concerning its application to national security-sensitive information. Any legislative response to that problem should be specifically targeted at the way in which courts exercise their Norwich Pharmacal power to order disclosure in cases where the material is such that its disclosure might cause harm to national security.

OPTION (4): NO LEGISLATION BUT INTRODUCE STATUTORY CMPS INTO NORWICH PHARMACAL APPLICATIONS

187. The Green Paper considers and rejects a fourth option, which is not to legislate at all in relation to Norwich Pharmacal, but to continue to defend such applications on a case by case basis.[102] The Government says that it would have more confidence in its ability to defend such applications if CMPs were statutorily available in Norwich Pharmacal applications for disclosure. In fact it appears that CMPs are often used anyway in Norwich Pharmacal applications, by consent of the parties, probably because of the urgency of obtaining disclosure.[103]

188. On balance, however, the Government is not in favour of this option of not legislating, because continuing to have to defend Norwich Pharmacal applications for sensitive material will reinforce the concern of foreign intelligence partners that the UK Government cannot be trusted to safeguard sensitive material, and will therefore continue to have a disproportionate impact on national security.

189. For the reasons we have given above, we agree with the Government's preference "to legislate to clarify how [the Norwich Pharmacal] principles should apply in the national security context." We also agree with that narrow formulation of the legitimate objective: it should seek to provide clarification in relation to the national security context only. The case for going further has not been made out.

ANOTHER WAY FORWARD: CLARIFY APPLICATION OF PII TO NATIONAL SECURITY-SENSITIVE MATERIAL

190. We now turn to consider how best to provide that narrow legislative clarification. In our view, there is a relatively straightforward way of clarifying, in a closely targeted way, how courts should approach their task in the exercise of their Norwich Pharmacal jurisdiction when the material in question relates to national security. Moreover, this solution fits coherently not only with the established common law principles of PII but with the suggested statutory amendments to the law of PII to meet the fairness concern which we recommended in chapter 3 above.

191. As the court made clear in the Binyam Mohamed case, PII applies to Norwich Pharmacal cases. This means that even where a court has decided that Norwich Pharmacal disclosure ought to be ordered, it is still open to the Government to claim PII for the material in question and so avoid disclosure.

192. In our view, the statutory amendments to the law of Public Interest Immunity recommended in Chapter 3 above (a rebuttable statutory presumption against the disclosure of national security-sensitive information; a tightly defined test for when the presumption can be rebutted; and a non-exhaustive list of factors to be taken into account by the court when conducting the balancing exercise to determine whether the presumption is rebutted) also meet the Government's legitimate objective of providing greater certainty in the legal framework governing Norwich Pharmacal disclosure.

74 Green Paper, para. 1.22. Back

75 Memorandum of David Anderson QC. Back

76 Supplementary Memorandum of David Anderson QC,. Back

77 Q 195. Back

78 Supplementary Memorandum of David Anderson QC. Back

79 Ref Extradition Report. Back

80 See eg Secretary of State for the Home Deparment v Rehman [2001] UKHL 47 and W (Algeria) v Secretary of State for the Home Department [2010] EWCA Civ 898. Back

81 Binyam Mohamed v Foreign Secretary [2010] EWCA Civ 65. Back

82 See the written evidence of Sarah Cleveland, Professor of Human and Constitutional Rights, Columbia University Law School Back

83 Dinah Rose QC; EHRC; JUSTICE; Liberty. Back

84 Memorandum of David Anderson QC Back

85 Green Paper, para. 2.96. Back