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 dealand 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 likeor not me, because I am not directly
involvedbut 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
86
Omar, Habib. Back
87
Green Paper, paras 1.46, and 2.84. Back
88
Green Paper, para, 2.97. Back
89
R (on the application of Omar) v Foreign Secretary [2011] EWCA
Civ 1587 and R (on the application of Habib Suleiman Ngoroje)
v Foreign Secretary [2012] EWHC 681 (Admin). Back
90
Q196. Back
91
Securing our future, Speech by Foreign Secretary Rt Hon
William Hague MP at the Foreign and Commonwealth Office, London,
16 November 2011. Back
92
Binyam Mohamed. Back
93
Green Paper, Executive Summary, p. xii para. 6. Back
94
Green Paper, para. 2.90. Back
95
Memorandum of David Anderson QC. Back
96
Green Paper, paras 2.91-2.93. Back
97
Green Paper, para. 2.93: "The Government sees clear benefits
to a proposal along these lines." Back
98
Memorandum of David Anderson QC. Back
99
See Tinnelly and McElduff v UK. Back
100
Green Paper, para. 2.94. Back
101
Memorandum of David Anderson QC. Back
102
Green Paper, para. 2.95. Back
103
See e.g. Binyam Mohamed, Omar, Habib. Back
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