4 Reform of the courts' residual disclosure
("Norwich Pharmacal") jurisdiction
Introduction
77. In our Report on the Green Paper we accepted
that the Government had made out a case for legislating to provide
greater legal certainty about the application of the Norwich Pharmacal
principles to national security sensitive material.[53]
We accepted that Norwich Pharmacal applications carry a heightened
risk of disclosure of material which is damaging to national security,
because the very purpose of the application is to obtain an order
for disclosure. We also accepted that the novel application of
the Norwich Pharmacal jurisdiction to intelligence information
in the Binyam Mohamed litigation had given rise to a nervousness
on the part of intelligence partners about the risk of their shared
intelligence being disclosed and that it was a legitimate aim
to seek to reassure such partners by providing greater legal certainty.
78. The Independent Reviewer of Terrorism Legislation,
David Anderson QC, also accepted that there was a case for restricting
the novel application of the Norwich Pharmacal jurisdiction to
national security information. The question, for both us and
the Independent Reviewer, was one of proportionality: what would
be a proportionate restriction on the jurisdiction to order disclosure
in order to meet the Government's national security objectives?
The effect of the Bill
79. The Bill removes altogether the courts' jurisdiction
to order a person involved (however innocently) in apparent wrongdoing
by another person to disclose information about the wrongdoing
(the so-called "Norwich Pharmacal jurisdiction") if
the information is "sensitive information." The ouster
of the courts' jurisdiction to order disclosure of such information
is in absolute terms: "A court may not, in exercise of its
residual disclosure jurisdiction, order the disclosure of information
sought [...] if the information is sensitive information."[54]
80. "Sensitive information" is extremely
broadly defined to mean any information held by an intelligence
service; obtained from, or held on behalf of, an intelligence
service; derived, in whole or in part, from information obtained
or held on behalf of an intelligence service; or relating to an
intelligence service.[55]
The Government refers to this category of sensitive information
as "intelligence service information."
81. Sensitive information also includes any information
specified or described in a certificate issued by the Secretary
of State in relation to the proceedings.[56]
The Secretary of State may issue such a certificate if they consider
that it would be contrary to the interests of national security
or the international relations of the UK to disclose the information,
whether the information exists, or whether the person said to
hold the information is in fact in possession of the information.[57]
82. A party to the proceedings can apply to the
court to set aside the Secretary of State's certificate on the
ground that the Secretary of State ought not to have determined
that disclosure of the information would be damaging to national
security or international relations.[58]
The court, when deciding whether or not to set aside the certificate,
must apply the principles that would be applied on an application
for judicial review.[59]
Proceedings challenging the Secretary of State's certificate
are deemed to be proceedings in which a CMP is permissible.[60]
83. The provisions in the Bill are closely based
on the Government's preferred option for reforming the Norwich
Pharmacal jurisdiction in the Green Paper.[61]
They are, however, considerably wider than the option canvassed
there because of the extraordinary width of the definition of
intelligence service information in the Bill. The Green Paper
envisaged an absolute exemption from disclosure for "material
held by or originated from one of the Agencies."[62]
The Bill, as drafted, would also exempt information relating
to an intelligence service, and information derived "in whole
or part" from information obtained from, or held on behalf
of an intelligence service, which are both potentially very broad
categories of information.
84. The provisions on the Norwich Pharmacal jurisdiction
in the Bill go far beyond what either we in our Report or the
Independent Reviewer considered proportionate to the legitimate
objective that we both accepted. We concluded that any absolute
protection for the control principle, by altogether exempting
from disclosure any information received in confidence from an
intelligence partner, was in principle incapable of being justified
because it was inconsistent with the rule of law: it would allow
the possibility of a court being unable to order the disclosure
of such information even where such disclosure would cause no
or negligible harm to any public interest and the value of it
to the individual was high, for example because it was central
to his ability to contest legal proceedings in which he faced
the possibility of the death penalty (as in Binyam Mohamed's case,
at least at the outset of those proceedings when he still faced
the prospect of a capital charge).
85. The Independent Reviewer also found that
a blanket exclusion from disclosure for all material held by or
originating from one of the Agencies, regardless of its sensitivity,
would be "manifestly disproportionate". As far as the
requirements of human rights law are concerned, the problem with
any blanket exemption, of whatever scope, is that it precludes
any judicial balancing of the degree of possible harm to national
security on the one hand against any competing public interest
in favour of disclosure on the other (even where that competing
interest is an individual's right to use legal process to defend
themselves against charges carrying the death penalty).
86. The Government has rejected both our and
the Independent Reviewer's views, however, and brought forward
in the Bill a proposal which not only seeks to make the control
principle absolute in the Norwich Pharmacal context, but goes
beyond that by providing for an absolute exemption from disclosure
for a much wider category of "intelligence service information."
Absolute protection for the control
principle?
87. The Government's Response to our Report rejected
our recommended approach of rebuttable presumptions against disclosure
on the basis that this would provide little advance on the current
system in terms of providing "certainty" to the UK's
international partners and it would therefore provide no additional
reassurance to those partners.
88. Since our Report on the Green Paper we have
sought to understand better the Government's justification for
the scope of its proposed reforms to the courts' Norwich Pharmacal
jurisdiction. We invited written evidence from Sir Daniel Bethlehem
QC, former Foreign Office Legal Adviser, about his experience
of the impact of the Binyam Mohamed litigation and other relevant
cases on the UK's intelligence partners, including but not confined
to the US.[63] We appreciate
the considerable constraints upon his ability to give evidence
in view of his previous position in the FCO and we are grateful
to him for agreeing to provide written evidence in his private
capacity. We found his evidence helpful and illuminating, and
demonstrative of the conscientious attempts within Government
to strike the right balance between justice and security in this
difficult context. We focus here on one aspect which is most
relevant to our present Report, concerning the effect of the Binyam
Mohamed judgment insofar as that is relied on by the Government
to justify the scope of its reforms to the courts' Norwich Pharmacal
jurisdiction.
89. According to Sir Daniel's evidence, the damage
done by the Binyam Mohamed case was only in part a consequence
of the decision requiring disclosure of the seven paragraphs of
the court judgment in question in violation of the control principle.
"More serious, in my view, was the decision of the Divisional
Court to reject the PII certificate and substitute its own view
of the balance of the public interest."[64]
The "core issue" with the Binyam Mohamed judgment,
according to Sir Daniel, is that it caused considerable doubt
to creep into the heart of the PII process. By rejecting the
Secretary of State's claim to PII, the court showed the current
PII framework to be inadequate to the task of achieving a proper
balance between open justice and national security in the types
of cases with which the Bill is concerned.
90. Sir Daniel describes the claiming of PII
by a minister in the following terms:
As a matter of established form, this assessment
always concludes with a statement by the Secretary of State that
this balance is ultimately a matter for determination by the court,
even though the received wisdom is that a court will give a good
deal of deference to the views of the Secretary of State and is
highly unlikely to reach a conclusion different from that of the
Secretary of State.[65]
91. Sir Daniel Bethlehem QC's account of the
disquiet in the intelligence and diplomatic communities as a result
of this particular feature of the Binyam Mohamed judgment is directly
corroborated by the Independent Reviewer's account of US perceptions
of the judgment, following his recent visit to the US.[66]
He said[67]
What angered them about Binyam Mohamed
[...] was not so much the outcome [...] in terms of what was disclosed
as the fact that an English court had been prepared to disclose
material which the Foreign Secretary had concluded presented a
likelihood of real damage both to national security and international
relations; a conclusion that was supported by evidence from very
high-level officials in America expressing their concern. [...]
The burden of the comments I had from the Americans did not relate
to any damaging effect of the disclosure of that material. It
related to the fact that the court was prepared to overrule the
Foreign Secretary.
92. As a parliamentary committee with a particular
concern for human rights and the rule of law, we are troubled
by the suggestion that the Executive is only happy to acknowledge
a role for the courts in the adjudication of PII claims on national
security grounds so long as it always upholds the Government's
claims to immunity from disclosure. In our view, the statement
by the Secretary of State on a PII certificate is not merely a
matter of form. Rather, as explained succinctly in the Report
of the House of Lords Constitution Committee on the Bill, it reflects
a fundamental constitutional settlement which is the product of
many years of case-law, culminating in the landmark judgments
of the House of Lords in Conway v Rimmer and Wiley.
It follows from those judgments, and from the explicit recognition
by the Secretary of State when claiming PII, that the possibility
of the court rejecting the executive's claim is acknowledged and
accepted by the Executive. The rule of law requires this.
93. We are concerned that clause 13 of the Bill,
as currently drafted, amounts to a reversion to class-based claims
for PII, in which ministers exercise a veto over disclosure on
the ground that the information falls into a particular class,
regardless of its contents. We are acutely aware of historic
cases, such as the Matrix Churchill case, in which executive overreaching
of the power to make class-based claims for PII led to the welcome
abandonment of such an approach to claiming PII in favour of an
approach which focused on the contents of the documents in question.
94. We note in passing that the Independent Reviewer's
evidence made clear that it is accepted in the US that "the
letter of the US law does not give an unconditional assurance
that [...] UK-sourced intelligence was safe from disclosure in
American courts."[68]
He reported that, according to the American Civil Liberties Union,
UK-sourced intelligence information could be requested under US
Freedom of Information legislation, and it is for the courts to
decide whether the exemptions in that legislation (including for
national security and intelligence information) apply. Although
a heavy measure of judicial deference is given in the national
security context when looking at those exemptions, "the courts
have said that deference is only due when the Government adequately
explains the basis for its withholding and that the deference
does not equate to judicial abdication of the duty to review the
basis for withholding. However, there did not seem to be any
examples in which the classification of foreign-sourced intelligence
information had been challenged. Nevertheless, that possibility
exists in the US legal framework.
95. We also note with interest that the Intelligence
and Security Committee has not called for an absolute exemption
for control principle information, but rather has called for the
protection to be given to foreign intelligence information to
be bolstered by a statutory presumption against disclosure of
intelligence material, to send a clear signal to the courts about
Parliament's intentions in relation to such material. The Committee
was at pains to point out that this would merely be a rebuttable
presumption, and the final decision would remain with the judges:[69]
Any presumption would of course be rebuttable
and therefore the final decision would still lie with the courts,
although there would need to be compelling reasons for a judge
to rule against.
96. We remain of the view expressed in our
Report on the Green Paper, that legislating to provide an absolute
exemption from the Norwich Pharmacal jurisdiction for control
principle information is not consistent with the Government's
commitment to the rule of law. We recommend that the Bill be
amended to replace the current absolute exemption for certain
types of intelligence information with a system of certification
based on the contents of the information and subject to judicial
control.
97. We also draw to Parliament's attention
the commitment which has been given by the UK Government to the
US Government that the Binyam Mohamed judgment will be addressed
by legislation. This is apparent from the Government's response
to the Second Report of the House of Lords Constitution Committee
on the Bill (where it says that the US reaction to the judgment
was tempered by the UK Government's early commitment to do so)
and the evidence of the Independent Reviewer.[70]
What "sensitive information"
is intended to be exempt?
98. In the Government's response to our Report
on the Green Paper it argues that there is clear justification
for an exemption from the courts' Norwich Pharmacal jurisdiction
for material held by or originating from the intelligence services:[71]
The kind of material sought in these cases will
by its very nature be security-sensitive—it invariably relates
to the discharge by the agencies of their national security functions
and it will in consequence inevitably involve material, for example,
relating to counter-terrorist investigations, agent-recruitment
operations and engagement/communications with foreign intelligence
services. It is axiomatic that disclosure of any material in
these categories will cause damage to the operational effectiveness
of the agencies and, in consequence, to national security or international
relations. It is therefore possible to justify an absolute exemption
for all intelligence service related information from the scope
of the Norwich Pharmacal jurisdiction.
99. We invite Parliament to compare this broad
statement with the more measured approach of the Intelligence
and Security Committee cited in chapter 2 above. The Government
says that material held by, relating to or originating from one
of the intelligence services is by definition security-sensitive
information. The Intelligence and Security Committee, however,
distinguishes between sensitive information and information the
public disclosure of which really would jeopardise the national
security of the UK. As noted above, the ISC considers that there
are only two narrow categories of information which can rightly
be said to be that sensitive:
· UK intelligence material which would,
if disclosed publicly, reveal the identity of UK intelligence
officers or their sources, and their capability (including the
techniques and methodology that they use); and
· foreign intelligence material, provided
by another country on a strict promise of confidentiality.
100. We recommend that the scope of any reform
of the courts' Norwich Pharmacal jurisdiction be confined to the
narrower categories of information identified by the Intelligence
and Security Committee as information the disclosure of which
would really jeopardise the national security of the UK. The
amendments to this part of the Bill that we recommend below are
based on the ISC's narrower definition of sensitive material the
disclosure of which would be damaging to national security.
A more proportionate response
to the problem
101. To give effect to the recommendations we
make above, we recommend amendments to clauses 13 and 14 of the
Bill.
102. We recommend deleting the absolute exemption
from disclosure for intelligence service information (including
control principle information), but leaving in place the proposed
system for ministerial certification, narrowed down to apply solely
to the narrower categories of information identified by the ISC
(thereby tailoring the certification provision more closely to
its avowed objective). Such a ministerial
certificate could be available as a longstop, to be issued only
after any PII exercise has been gone through by the court which
nevertheless intends to order disclosure of the information in
question, and should be capable of challenge on ordinary judicial
review principles and grounds.
103. The basic scheme of our proposed amendments
to the Bill's Norwich Pharmacal provisions is therefore to provide
a longstop ministerial certification procedure, subject to judicial
review, where the PII process results in disclosure of information
which the Secretary of State says would either breach the control
principle or reveal the identity of UK intelligence officers or
their sources, or their capability. These amendments seek to
give effect to the Independent Reviewer's suggestion of a system
of judicially reviewable ministerial certificates. The certification
part of the scheme is loosely based on a provision in the Canada
Evidence Act which provides for the Attorney-General of Canada
to issue a certificate, after an order or decision has been made
which would result in the disclosure of information obtained in
confidence from a foreign entity, prohibiting such disclosure.[72]
The proper application of the PII process should normally prevent
court-ordered disclosures in breach of the control principle,
but the certification procedure provides an additional safeguard
against such disclosure, whilst still preserving a judicial role.
104. We therefore recommend that the blanket
and unreviewable exemption from disclosure for intelligence service
information should be removed by deleting clause 13(3)(a)-(d).
The scope of the restriction on the Norwich Pharmacal jurisdiction
would be confined to the Government's avowed rationale, namely
the concern that intelligence partners are worried about disclosures
in breach of the control principle since the Binyam Mohamed
case, and that intelligence gathered and generated by our own
intelligence services is also at risk of damaging disclosure.
The certification system would therefore apply only to the information
identified by the ISC as really requiring protection, not the
much wider category of information the disclosure of which might
cause damage to the interests of national security or to the interests
of the international relations of the UK.
105. We also recommend that the grounds on
which the ministerial certificate can be judicially reviewed (applying
judicial review principles) are expanded beyond the very narrow
(and difficult to meet) ground in the current clause 14(2), to
include the ground that any harm to national security caused by
disclosure is outweighed by the need to ensure that effective
remedies are available for serious human rights violations.
The Bill would then provide for courts to decide whether a very
narrowly defined exception to the control principle applies in
a particular case, as recommended by our Report on the Green Paper,
as implicitly contemplated by the ISC, and as accepted by the
Independent Reviewer to be desirable "if it can be achieved".
106. The following amendments to the Bill would
give effect to these recommendations:
Clause 13
Clause 13(2), Page 10, Line 7, before "sensitive"
insert "certified"
Clause 13(3), Page 10, line 8, before "sensitive"
insert "Certified"
Clause 13(3), Page 10, line 9, leave out sub-paragraphs
(a)-(d)
Clause 13(3), Page 10, line 16, after "disclose"
insert "because it is
UK intelligence information the disclosure of which
would reveal the identity of UK intelligence officers or their
sources, or their capability (including the techniques and methodology
that they use); or
(b) foreign intelligence material provided confidentially
by another country."
Clause 13(4), Page 10, line 18, leave out "contrary
to the public interest" and insert "damaging to the
interests of national security"
Clause 13(5), Page 10, line 23, leave out sub-clause
(5)
Page 10, line 28, insert—
Clause 14
Clause 14(1), page 11, line 14, leave out "ground"
and insert "grounds"
Clause 14(2), Page 11, line 15, leave out "That
ground is" and insert "Those grounds are (a)"
Clause 14(2), Page 11, line 17, leave out "contrary
to the public interest" and insert "damaging to the
interests of national security"
Clause 14(2), Page 11, line 18, at end of sub-clause
(2) insert—
"(b) that the harm caused by the disclosure
of the information is outweighed by the need to ensure an effective
remedy for serious human rights violations."
Clause 14(3), Page 11, line 20, leave out "ground"
and insert "grounds"
Clause 14(5), Page 11, line 27, leave out sub-clause
(b).
53 JCHR Report on the Green Paper, paras 151-158. Back
54
Cl. 13(2). Back
55
Cl. 13(3)(a)-(d). Back
56
Cl. 13(3)(e). Back
57
Cl. 13(4) and (5). Back
58
Cl. 14(1) and (2). Back
59
Cl. 14(3). Back
60
Cl. 14(4). Back
61
Green Paper, paras 2.91-2.93. Back
62
Ibid., para. 2.91. Back
63
Ev9. Back
64
Para. 24. Back
65
Ev 9 para. 23. Back
66
Oral evidence of David Anderson QC, 16 October 2012. Back
67
Q72. Back
68
Q74. Back
69
ISC Annual Report 2011-12, para. 161. Back
70
See eg. Q 77: "My impression was that our Government has
spent a good deal of effort and charm and goodwill in persuading
the United States that we are going to sort this out through Clause
13 of the current Bill." Back
71
Government Response to the JCHR Report, p. 13. Back
72
Section. 38.13(1) of the Canada Evidence Act. Back
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