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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