Justice and Security Bill [HL]: Norwich Pharmacal jurisdiction - Constitution Committee Contents


Justice and Security Bill [HL]: Norwich Pharmacal jurisdiction


1.  The Constitution Committee published a report on the Justice and Security Bill [HL] on 15 June,[1] in advance of the Bill's second reading debate in the House.[2] That report focused principally on clauses 6 and 7 of the Bill, which concern closed material procedures. We publish now a second report on the Bill, focusing on clauses 13 and 14, which concern the courts' so-called Norwich Pharmacal jurisdiction. We do so because the issues arising on clauses 13 and 14 are technical, as well as controversial. It is the purpose of this report not to make particular recommendations, but simply to offer an account of the legal position as we understand it. We hope that this report will be of assistance to the House as it considers clauses 13 and 14 further.

2.  The Norwich Pharmacal jurisdiction is a means whereby a party may request the court to order the disclosure of information where there has been or may have been wrongdoing by a third party and where the information is required in order to seek justice in respect of that wrongdoing. The jurisdiction originates in the field of patent law[3] and was first and most famously invoked in the context of national security in the Binyam Mohamed case.[4] We set out in the following paragraphs what the jurisdiction entails, what happened (and what did not happen) in the Binyam Mohamed case, and what has happened since that case was decided.

The Norwich Pharmacal jurisdiction

3.  In the Norwich Pharmacal case itself, Lord Reid said—

"if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did … justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration." [5]

4.  The Justice and Security Bill describes this jurisdiction in clause 13(1), in the following terms—

"This section applies where, by way of civil proceedings, a person ("A") seeks the disclosure of information by another person ("B") on the grounds that—

(a)  wrongdoing by another person ("C") has, or may have, occurred,

(b)  B was involved with the carrying out of the wrongdoing (whether innocently or not), and

(c)  the disclosure is reasonably necessary to enable redress to be obtained or a defence to be relied on in connection with the wrongdoing."

5.  The Bill would prevent the court from exercising its Norwich Pharmacal jurisdiction in any case concerning the disclosure of "sensitive information". Clause 13(3) gives a very wide definition to sensitive information. The ouster of the court's Norwich Pharmacal jurisdiction is not intended to be confined to cases concerned with intelligence secrets, but may extend to any case certified by the Secretary of State to involve disclosures contrary to the public interest for reasons of national security or the UK's international relations.[6]

The Binyam Mohamed case

6.  The claimant, invoking the Norwich Pharmacal jurisdiction, sought the private disclosure to his US security-cleared counsel of such material as the United Kingdom Government had in their possession relating to the claimant's detention at and en route to Guantanamo Bay. At the time the claimant faced the prospect of a capital charge before a US Military Commission; it was to be part of his defence that information about him had been obtained under torture. (In the event all charges were dropped and the claimant was released and returned to the United Kingdom.)

7.  The claimant was an Ethiopian national who had been resident in the United Kingdom from 1994 to 2001. He was arrested (in his view unlawfully) in Pakistan in April 2002. In September 2004 he arrived at the US detention facility at Guantanamo Bay. His evidence was that he was illegally detained first in Pakistan, then in Morocco and subsequently in Afghanistan, before being taken to Guantanamo; that in each of these locations he was interrogated by and under the supervision of US officials; and that he was tortured and subjected to cruel, inhuman and degrading treatment.

8.  The Divisional Court recognised that the case sought to apply the Norwich Pharmacal jurisdiction in novel circumstances. The court analysed Norwich Pharmacal as comprising five elements: (1) was there wrongdoing?, (2) were the UK Government, however innocently, involved in the wrongdoing?, (3) was the information necessary in order for the claimant to seek redress?, (4) was the information sought within the scope of the available relief?, and (5) should the court exercise its discretion in favour of granting relief? Only if all these elements were satisfied could disclosure be ordered. As to the first, it was accepted by the Secretary of State that the claimant had established an arguable case that "after being subject[ed] to torture and cruel, inhuman or degrading treatment in Pakistan, he was unlawfully rendered from Pakistan to Morocco by the US authorities" and that "whilst in Morocco he was subject to … torture during his interrogation there by or on behalf of the US authorities". The court ruled that, in the light of this concession, it was not necessary for it to "determine whether there was in fact any wrongdoing by or on behalf of the United States Government".[7]

9.  The Divisional Court then ruled that the second, third and fourth elements were satisfied on the facts of the particular case, stating that "what the Foreign Secretary holds is information essential to a fair consideration of [the claimant's] case and a fair trial".[8]

10.  Despite this, the court did not rule that the documents should be disclosed. Rather, the court gave the Secretary of State the opportunity to consider whether he should make a public interest immunity (PII) certificate in respect of the documents.[9] This the Secretary of State did, relying on the "control principle". The control principle is not a legal principle.[10] It governs the sharing of secret intelligence between the agencies of different states. It provides that intelligence shared by state A with the intelligence agencies of state B remains under the control of state A even after it has been shared. In particular, state B may not disclose the intelligence shared with it by state A without the consent of state A.

11.  A number of the documents sought by the claimant in the Binyam Mohamed case were of US origin: they had been passed by the US intelligence services to the UK Security Service and Secret Intelligence Service. Intelligence-sharing, the Secretary of State explained in his PII certificate, is essential between allies such as the US and the UK: it is "vital to the national security of the United Kingdom" such that "it saves lives". To this end, the Secretary of State certified that "it is essential that the ability of the United States to communicate in confidence with the United Kingdom is protected; without this confidence they simply will not share information in the open manner that is currently the case". It followed, in the Secretary of State's view, that "disclosure of [the] documents by order of our courts or otherwise by United Kingdom authorities would seriously harm the existing intelligence-sharing arrangements between the United Kingdom and the United States and cause considerable damage to the national security of the United Kingdom".[11]

12.  In his PII certificate the Secretary of State objected not only to the disclosure of the documents but also to the publication of seven paragraphs in the Divisional Court's judgment, paragraphs which (at the Secretary of State's request) had been redacted. As later became clear, the redacted paragraphs provided a summary of reports by the US authorities on the circumstances of the claimant's detention and of the treatment accorded to him.

13.  Before the Divisional Court could make a final ruling on whether to uphold the Secretary of State's PII certificate, the US government made the documents in question available, albeit subject to redactions, in Binyam Mohamed's habeas corpus proceedings before the US District Court. The Divisional Court therefore never had to rule on the fifth and final element of the claimant's Norwich Pharmacal claim—and never ordered that the Secretary of State should disclose the documents in the manner sought by the claimant.

14.  The only issue remaining in the proceedings before the Divisional Court was whether the seven redacted paragraphs of that court's first judgment should be made public. This matter was decided ultimately by the Court of Appeal,[12] which ruled in favour of publication.[13] Two of the three Court of Appeal judges hearing the appeal, however, made it clear that they reached this conclusion only because the US District Court for the District of Columbia had already ruled, first, that the allegations made by the claimant as to his mistreatment were true and, secondly, that his mistreatment amounted to torture.[14] This ruling came in a case to which the US government was a party, and the US government accepted the ruling. By the time the Court of Appeal delivered its judgment in Binyam Mohamed therefore, the claimant's torture had been judicially found to be a matter of fact and was in the open; there was accordingly no remaining confidentiality in the matter, and there was therefore no reason for the seven paragraphs of the Divisional Court's judgment to remain redacted.[15]

15.  There was nothing in these seven paragraphs that could identify any agent or any facility or any secret means of intelligence gathering. They did not themselves contain secret intelligence. They stated that the claimant was subject to "sleep deprivation, threats and inducements"; that his fears of "disappearing" were played upon; that he was shackled; that he was under "significant mental stress"; that this treatment, if it had been administered on behalf of the UK, would have been unlawful; and that it could "easily be contended to be … cruel, inhuman and degrading treatment".[16]

16.  To summarise: in Binyam Mohamed (1) the claimant did not seek the public disclosure of any documents, whether American or otherwise: he sought the disclosure of documents on a confidential basis to his US security-cleared counsel; (2) the court did not rule on whether or not such disclosure should be ordered, as the documents in question were passed to his US security-cleared counsel (in redacted form) by the US authorities; and (3) the seven paragraphs of the Divisional Court's judgment ultimately ordered by the Court of Appeal to be published were made public only because, by the time of the Court of Appeal's judgment, their subject-matter had been publicly acknowledged in the United States. In any event, as the Lord Chief Justice (Lord Judge) stated in his judgment in the case, "it is not suggested that there is anything in the redacted paragraphs themselves which would involve a breach of security, or disclose what may be summarised as intelligence material".[17]

Reactions to the Binyam Mohamed case

17.  The then Government were swift to portray the decision of the Court of Appeal as a victory.[18] On the day of the judgment being handed down, the Secretary of State (the Rt Hon. David Miliband MP) made a statement to the House of Commons in which he welcomed the fact that "crucially, the court has today upheld the control principle". The Secretary of State described the judgment as having "specifically vindicate[d] the careful assessment that releasing the seven paragraphs without the consent of the United States would have damaged the public interest".[19] The then Shadow Secretary of State (the Rt Hon. William Hague MP) agreed, welcoming the judgment of the Court of Appeal, "which upholds the principle of control", as he put it.[20] Their shared view was subsequently endorsed by the Intelligence and Security Committee, which stated as follows in its Annual Report for 2009-10—

"The Committee is concerned that the publication of other countries' intelligence material, whether sensitive or otherwise, threatens to undermine the key 'control principle' of confidentiality which underpins relations with foreign intelligence services, and that this may seriously damage future intelligence co-operation. We therefore welcome the Court of Appeal's recognition of the importance of the 'control principle'." [21]

18.  In its Annual Report for 2010-11, however, the Intelligence and Security Committee struck a rather different note. It stated that the Court of Appeal's decision in the Binyam Mohamed case "resulted in the release of US intelligence material".[22] As we have seen, this was not the case.

19.  Recommendation AA on page 66 of the ISC's Annual Report for 2010-11 states: "We agree with the Government that the Court of Appeal's decision in the Binyam Mohamed case, which resulted in a breach of the 'control principle', has raised serious concerns which need to be resolved urgently". It is difficult to reconcile this view with what the Committee itself said about the case in its report for 2009-10, with what both the Secretary of State and the Shadow Secretary of State said in the House of Commons in February 2010, and with the reasoning of the Court of Appeal.

20.  The view expressed by the ISC in its Annual Report for 2010-11 is at least partly based on opinions expressed to the Committee and to others from sources in the United States.[23] That the US sources (and others) are worried about our ability to keep the secrets which they share with us was likewise a theme of several contributions to the second reading debate on the Bill.[24] However, as was pointed out during the course of that debate, what is at issue here is not the sincerity of our allies' concerns but rather whether they are based on a correct understanding of our law.[25]

The decision of the High Court in Omar

21.  On 26 June 2012 the High Court handed down its judgment in R (Omar and others) v Secretary of State for Foreign and Commonwealth Affairs.[26] Omar and the other claimants have been charged with murder and other offences in connection with their alleged involvement in a terrorist bombing in Kampala, Uganda, in 2010, in which 76 people were killed. Omar alleged that he was arrested in Kenya and illegally rendered to Uganda without judicial process; and that he was tortured and subjected to ill-treatment in Uganda. These allegations are currently before the Constitutional Court of Uganda.

22.  Omar commenced a Norwich Pharmacal claim in the High Court in London seeking disclosure of evidence in the possession of the Secretary of State showing that he was illegally rendered from Kenya and ill-treated in Uganda. The court dismissed the action, giving two distinct sets of reasons.

23.  The High Court held, first, that access to evidence sought in UK courts in respect of legal proceedings in a foreign jurisdiction is governed by statute,[27] that the legislation in question provides for an exclusive regime governing access to evidence in these circumstances and that, therefore, the court's Norwich Pharmacal jurisdiction is unavailable where (as in this case) the legislation applies.[28] The statutory process may be triggered only at the request of a foreign court, prosecuting authority or law enforcement agency (and not at the instigation of an individual). The legislation offers absolute protection against disclosure the Secretary of State certifies would be prejudicial to the security of the United Kingdom.[29]

24.  Secondly, the High Court held that, even if Norwich Pharmacal could be invoked, it would in any event dismiss the claim. The court held that the exercise of the jurisdiction could not be shown to be necessary without the claimant first seeking disclosure of the information in the Ugandan courts (which he had not done).[30] The claimant could not succeed unless he could show that those for whom the Secretary of State was responsible were mixed up in the wrongdoing of others. This, the court held, would require the claimant to show a degree of participation suggestive of facilitation of wrongdoing.[31] Even if this test could be satisfied in this case[32] the court ruled that it would refuse to exercise its discretion to order disclosure. The court attached "very considerable weight" to evidence from the Foreign and Commonwealth Office of the damage that disclosure would cause to the UK's relationship with Uganda—not because of intelligence-sharing but because disclosure would be likely to be perceived in Uganda as "a deliberate attempt by the UK to derail the Government of Uganda's efforts to bring [a] terrorist to justice".[33]

25.  As a High Court decision, Omar may be appealed. As matters stand, however, it is an authoritative indicator of how limited the rulings in the Binyam Mohamed case are.

Conclusion

26.  As we pointed out in our earlier report on this Bill, we know of no PII case in which a court has ordered the disclosure of intelligence secrets contrary to the wishes of a Government minister.[34] This includes Binyam Mohamed, and Omar serves only to underscore the point.[35] For the reasons set out above, the legal position is clear: there is no credible risk that the judiciary of this country would order the disclosure of secret intelligence material, wherever it emanates from.

27.  However, the Committee recognises that the legal position does not resolve the issue of policy raised by the Bill. The House will need to decide, in the light of the current legal position as set out above, whether there are nevertheless good policy reasons for enacting all or part of clause 13. This report does not address those issues.


1   3rd report, session 2012-13, HL Paper 18.  Back

2   The second reading debate took place on 19 June 2012.  Back

3   Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133.  Back

4   This was a complex case in which there were six judgments at first instance (i.e., in the Divisional Court) and two judgments in the Court of Appeal. The latter are authoritatively reported at [2011] QB 218, where the full reference to the case is given as R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2010] EWCA Civ 65, [2010] EWCA Civ 158.  Back

5   Norwich Pharmacal, op. cit., at p 175.  Back

6   See clauses 13(4) and (5). Clause 14 provides for judicial supervision of certification decisions according to "the principles which would be applied in judicial review proceedings". Back

7   Divisional Court, 1st judgment, [2008] EWHC 2048 (Admin), paras 64, 67-68.  Back

8   Ibid., para 106.  Back

9   On the meaning and procedure of PII, see our first report on the Justice and Security Bill, op. cit., paras 7-8.  Back

10   At para 44 of his judgment in the Court of Appeal in Binyam Mohamed (op cit), Lord Judge CJ stated that "In this jurisdiction the control principle is not a principle of law: it is an apt and no doubt convenient description of the understanding on which intelligence is shared confidentially between the USA services and those in this country, and indeed between both countries and any other allies".  Back

11   PII certificate dated 26 August 2008.  Back

12   Comprising Lord Judge CJ, Lord Neuberger of Abbotsbury MR and Sir Anthony May P.  Back

13   The paragraphs appear at p 314 of the authoritative report of the case, op. cit.  Back

14   This was the position adopted by Lord Neuberger MR and Sir Anthony May P. At para 200 of his judgment Lord Neuberger MR stated that "the information, by being published as factually accurate by a US Judge, is no longer 'intelligence material' and would not be 'released' if it was now repeated in an English judgment".  Back

15   See, e.g., the judgment of Lord Neuberger MR at paras 126 and 138-39.  Back

16   The Divisional Court stated that it was "difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported as to how a detainee was treated by them" (4th judgment, [2009] EWHC 152 (Admin), para 69).  Back

17   Op. cit., para 13. At para 52 of his judgment the Lord Chief Justice further emphasised the point, stating that "the publication of the redacted paragraphs would not and could not of itself do the slightest damage to the public interest".  Back

18   It is notable that the Government did not seek permission to appeal to the Supreme Court, as they surely would have done had they considered that the judgment raised concerns for the future.  Back

19   HC Deb, 10 February 2010, cols 913-4.  Back

20   Mr Hague said that "We … welcome today's judgment, which upholds the principle of control and the need for openness in this particular case" and added that "We have always believed that the principle of control could be upheld while seeking an exception in this case from the United States" (ibid., col 916). Back

21   Cm 7844, para 57.  Back

22   Cm 8114, para 16.  Back

23   Op. cit., para 230.  Back

24   See, e.g., Lord Butler of Brockwell at col 1681 and the Marquess of Lothian at col 1686, HL Deb, 19 June 2012.  Back

25   See Lord Lester of Herne Hill, at col 1692.  Back

26   [2012] EWHC 1737 (Admin). The court was composed of Sir John Thomas P and Burnett J.  Back

27   The Evidence (Proceedings in other Jurisdictions) Act 1975 (for civil cases) and the Crime (International Co-operation) Act 2003. This legislation was not considered in the Binyam Mohamed case.  Back

28   Op. cit., paras 64, 66. Back

29   Crime (International Co-operation) Act 2003, section 13 and Schedule 1, paras 5(4) and (5).  Back

30   Op. cit., paras 85-86. Back

31   Ibid., para 97.  Back

32   Whether or not this test was satisfied in this case is a matter dealt with by the court only in a closed annex to its judgment: neither its conclusion on this point nor its reasoning is in the public domain.  Back

33   Op. cit., paras 106(3), 107. Back

34   Op. cit., para 22.  Back

35   The High Court reached its decision in Omar without needing to go to PII: see para 106 of the court's judgment.  Back


 
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