Legislative Scrutiny: Justice and Security Bill - Human Rights Joint Committee Contents

4  Reform of the courts' residual disclosure ("Norwich Pharmacal") jurisdiction


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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© Parliamentary copyright 2012
Prepared 13 November 2012